200 A. 274 | Pa. Super. Ct. | 1938
Argued April 14, 1938.
The use plaintiff, Edward Anderson, when a boy six years old, was apprenticed or indentured to John W. Dalbey, of Clarksville, Greene County, by the Directors of the House of Employment and Support of the Poor of Greene County, for the term of fifteen years, by an agreement, under seal, dated November 9, 1899, wherein the said John W. Dalbey covenanted and agreed that he would give the boy a good common school education and provide him with sufficient food, boarding, lodging, clothing, and other things necessary for his health and comfort, and upon the expiration of said term would give him a horse, saddle and bridle and a good suit of clothes, or their value in money. This was an action in assumpsit brought upon that sealed instrument to recover for Edward Anderson the value in money of said horse, saddle and bridle and suit of clothes. Under the decision in Concrete Products Co. v. UnitedStates F. G. Co.,
It appeared in evidence that Edward Anderson lived with John W. Dalbey and the Dalbey family, mentioned in the deed of indenture, until April, 1909, when John *373 W. Dalbey, having married again, removed from the house where he and his family lived with the boy, and moved with his wife to a house across the street and set up housekeeping there, leaving the boy with the rest of the family, — his daughter, son-in-law et al., —, in the old home.
John W. Dalbey died on March 12, 1934, and Edward Anderson, having shortly thereafter learned of the indenture and the terms thereof, and claiming that the horse, saddle and bridle and suit of clothes, called for by the indenture, had not been given him at the expiration of the term, by his attorney, promptly notified the administrators of the Estate of John W. Dalbey, through their advertised attorneys, and made demand of the Estate for the value in money of the horse, saddle and bridle and suit of clothes he should have received on November 9, 1914; and on their failure to pay said claim brought this action in assumpsit against Dalbey's administrators, and had it duly indexed in the Prothonotary's Office of Greene County, in accordance with the provisions of section 15 of the Act of June 7, 1917, P.L. 447, and section 1 of the Act of June 7, 1919, P.L. 412.
The case was tried and submitted to a jury which rendered a verdict in favor of the plaintiff, Anderson, for $545.78. The main defense relied upon at the trial was the presumption of payment. A point for binding instructions in favor of the defendants having been presented and refused, they obtained a rule for judgment non obstante veredicto, which, after argument, the court made absolute. The judgment will have to be reversed. The only question is whether a new trial should be granted or judgment entered on the verdict.
In his opinion entering judgment non obstante veredicto for the defendants the trial judge said: "As we see it the jury have disposed of all the facts of the case and under the verdict of the jury the said Edward *374 Anderson is entitled to a judgment for the amount of the verdict rendered in his behalf provided there was enough competent evidence taken before the jury to sustain such verdict."
He then went on and held that Zella Dalbey, the widow of John W. Dalbey, who had been called as a witness by Anderson to prove that John W. Dalbey had not paid him the money value of the horse, saddle and bridle and suit of clothes, and who had testified that John W. Dalbey had told her that he had not done so, was not a competent witness, and, with her testimony excluded, there was not sufficient evidence to overcome the presumption of payment, and therefore entered judgment non obstante veredicto for the defendants.
The difficulty with this ruling is that in entering judgment non obstante veredicto under the Act of April 22, 1905, P.L. 286, the judgment must be entered upon the evidence in the record in the court below as it existed at the close of the trial: Dalmas v. Kemble,
But on full consideration we are of opinion that the court did not err in admitting the testimony of Mrs. Dalbey in evidence. *375
When Mrs. Dalbey was called as a witness by the plaintiff and an offer was made to prove that she lived with John W. Dalbey from April, 1909 to the day of his death, and was acquainted with his affairs and transactions, and that during the time she lived with him he did not deliver to Edward Anderson, the plaintiff, a horse, saddle and bridle and a good suit of clothes, or their value in money; and that Mr. Dalbey told her in his lifetime that he had not given Edward Anderson a horse, saddle and bridle and good suit of clothes or their equivalent in money; the only objections made by defendants' counsel to the offer were (1) That this claim is an action against the decedent's estate, the presumption of payment has arisen and the statute of limitations is applicable, and the testimony of this witness is therefore incompetent, irrelevant and immaterial to this action; (2) we object to the offer unless the time is fixed when John W. Dalbey is alleged to have made this statement to Zella Dalbey; and (3) that even though John W. Dalbey had admitted to Zella Dalbey that he had not complied with the terms of this contract, it would not give any right of action thereon to Edward Anderson, the plaintiff in this case. No objection was made that the statement of John W. Dalbey to his wife, Zella Dalbey, was a confidential communication excluded by the Act of May 23, 1887, P.L. 158, sec. 5(b). That objection was first raised after the trial, on the motion for judgment non obstante veredicto. And the court below citingDanley v. Danley's Exrs.,
It must also be remembered that the Act of May 23, 1887, supra, is an enabling act. Under it, witnesses are made competent to testify unless excluded by its provisions. *380
Differing from the rule in force at common law, the privilege of excluding confidential communications between husband and wife may now be waived. The statute (clause (b) of section 5) expressly so provides: "Nor shall husband and wife be competent or permitted to testify to confidential communications made by one to the other, unless this privilege be waived upon thetrial." Following the cases of Cornell v. Vanartsdalen,
We are of opinion that if the statement of the husband, as testified to by the wife, was a confidential communication, in the light of the foregoing cases, the privilege was waived, (1) by the failure of the wife to claim it; (2) by the failure of the defendants, in stating their objections to the offer of Mrs. Dalbey's testimony, to include, as ground for objection, that it was a confidential communication between husband and wife.
As to the evidence which may satisfy the jury that the payment relied upon as a defense was not made, subsequent decisions have not improved on the language of Mr. Justice SERGEANT in Foulk v.Brown, 2 Watts 209, 214, 215, as follows (omitting citations): "After a lapse of twenty years, bonds and other specialties . . . . . . legacies, mortgages, judgments, and indeed all evidences of debt excepted out of the statute, are presumed to be paid. . . . . . . The court will not encourage the laches and indolence of parties, but will presume, after a great length of time, some composition or release to have been made. . . . . . . This length of time does not operate as a positive bar, but as furnishing evidence that the demand has been satisfied. . . . . . . But it is evidence from which, when not rebutted, the jury is bound to draw a conclusion, though the court cannot. *382
. . . . . . Within the twenty years, the onus of proving payment lies on the defendant; after that time it devolves on the plaintiff to show the contrary, by such facts and circumstances as will satisfy the minds of the jury that there were other reasons for the delay of the prosecution of the claim than the alleged payment. And if these facts are sufficient satisfactorily to account for the delay, then the presumption of payment, not being necessary to account for it, does not arise. Slighter circumstances are sufficient to repel the presumption than are required to take the case out of the Statute of Limitations, the latter being a positive enactment of the legislature, the former merely an inference on which legal belief is founded. The rule in regard to the Statute of Limitations . . . . . . that when the time has begun to run, it suffers no interruption from the occurrence of circumstances that would otherwise prevent its application, does not, it is said, apply to the case of a legal presumption. . . . . . Still the circumstances, whatever they may be, must account in some reasonable way for the lapse of time, without demand or suit. The party's ignorance of his right; . .. . . . a demand without suit, and generally any circumstance explaining satisfactorily why an earlier demand has not been made." (Italics supplied). To the same effect, see Sheafer v.Woodside,
We are of opinion that there was sufficient competent evidence to justify the submission of the case to the jury and warrant their finding that notwithstanding the lapse of twenty years, the debt had not, in fact, been paid.
There is no evidence in the record that the indentured apprentice had not faithfully served Dalbey "according to his power and ability" and did not "honestly and obediently in all things demean and behave himself towards John W. Dalbey and said Dalbey family" or that he had refused to perform any reasonable order of said John W. Dalbey during the continuance of said term.
The seventh assignment of error is sustained. The judgment is reversed and is now entered for the plaintiff, Edward Anderson, on the verdict.