117 Pa. 606 | Pa. | 1888
Opinion,
If it be true, as alleged, that John S. and Jacob Hostetter each placed in the hands of their brother, Henry Hostetter, the sum of $333.33|- upon the agreement of Henry that he would contribute a like sum to the fund, making in all $1,000, for the use of Maria Baer, the law would perhaps give effect to the intention of the parties and create a binding obligation upon Henry to apply the money according to the agreement. The contract being in furtherance of a common purpose, the promise and payment of the money in pursuance of it by John and Jacob, would be a sufficient consideration for Henry’s promise, and he could not recede from it without the consent of all.
Although Maria Baer was not a party to the consideration, and was in some sense a stranger to the contract; although she may not even have known of the transaction between the
But the statute of limitations was certainly a bar to the plaintiff’s recovery, unless tolled by an acknowledgment of the debt or a promise to pay it within six years. It may be conceded that the obligation of Henry Hostetter to Maria Baer was in the nature of a trust; but the remedy for recovery of the money was at law, and the trusts which are not affected by the statute of limitations are only those technical and continuing trusts over which chancery has exclusive jurisdiction. A person who receives money to be paid to another, or to be applied to a particular purpose, and does not pay it to the person or apply it to the purpose intended, is within-the operation of the statute of limitations: Lyon v. Marclay, 1 W. 271; Finney v. Cochran, 1 W. & S. 112; Zacharias v. Zacharias, 23 Pa. 452; Fleming v. Culbert, 46 Pa. 498. There is no proof of any fraudulent concealment, much less of any fraudulent act or misrepresentation on the part of Henry Hostetter, and we cannot presume fraud without proof. For anything
As the money was in Henry Hostetter’s hands for her use, “payable at any time,” “she got in circumstances to need it,” it was payable on demand; the statute began to run from the time she had a right to make the demand, and, in the absence of any proper acknowledgment or promise within six years, the plaintiff’s right was barred. In this view of the case it is not necessary to consider the remaining assignments of error.
The judgment is reversed.