144 Pa. 179 | Pennsylvania Court of Common Pleas, Lancaster County | 1891
Opinion,
The claim of the plaintiff in this case is exceedingly old and stale. It is founded upon an allegation that money was paid by the plaintiff’s intestate for the defendant’s intestate, for wages owing by the latter, and that boarding was furnished to the men who did the work, as far back as the year 1864, which was twenty-three years before the present action was brought. A further claim of the same character, in the year 1873, is included, and that was fourteen years prior to the suit. We know nothing of the items of these claims, as neither the appellant nor the appellee has printed the book entries which are the foundation of the action. But it is a fact not disputed that, during all the period of the account, the plaintiff’s intestate was the tenant of the defendant’s intestate, having the means of satisfaction in his hands every yrear, by applying the landlord’s share of the grain to the extinguishment of the debt. It seems incredible that such extraordinary laches should transpire between men so situated, especially as the plaintiff’s intestate was a tenant only, and his debtor was his landlord who was the owner of a large amount of real estate. No action was brought in the lifetime of either party, though three years
Upon reading the testimony we find that there was but one witness who gave any evidence as to any declarations of the defendant’s intestate made within six years prior to the commencement of the action. His name is John Pannebecker, and the whole of his testimony on this subject is as follows:
“ Q. Did you hear any talk between him (David Zartman) and Emanuel Keener? A. Yes, sir. Q. About a debt? A. Yes, sir. Q. State what it was? Tell us what was said between them ? A. Emanuel Keener asked him to pay for his debt about hauling lumber and boarding the men, and for the building of the barn and the house; and Mr. Zartman said that he knew that he owed him, and that he will see that he will pay it; that the boys, Davy and Pete, had got the best farms, and. they must pay it. . .'. . Q. What, then, did the old man say? A. The old man then said that he knows that he owes him, and that he wants to see that he will get his pay from the two boys ; David and Peter have got the best farms, and they must pay it.”
This is the whole of the testimony of the witness upon the direct question as to what was actually said by David Zartman, deceased.
It is a perfectly familiar and well-settled principle in the law of this state that, in order to take a debt out of the statute, an acknowledgment must be clear, distinct, and unequivocal, and it must be consistent with a promise to pay: Palmer v. Gillespie, 95 Pa. 340; Wesner v. Stein, 97 Pa. 322; Lawson v. McCartney, 104 Pa. 356; Shaeffer v. Hoffman, 113 Pa. 1. In Palmer v. Gillespie we said: “ A clear, distinct, and unequivocal acknowledgment of a debt is sufficient to take a case out of the statute. It must be an admission consistent with a promise to pay.....There must not be uncertainty as to the particular debt to which the admission applies. It must be so distinct as to remove hesitation as to the debtor’s meaning.” The same language was repeated in Wesner v. Stein. In Lawson v. McCartney, the defendant himself testified that he had
If we recur to the testimony in the present case, we find nothing from which it can be implied that David Zartman
The sixth assignment is sustained, and also the second, because the conversation testified to by the witness Matthews occurred in the year 1880, which was more than six years before suit brought. It should not have been admitted, and, having been received in evidence, it was entitled to no consideration, as the basis of a right to recover.
The first assignment is not sustained, as the witness, though a party, and interested, was only examined to prove book entries, and for that purpose he was competent.
The third assignment is not sustained, because the entry in David Zartman’s book was not such a book -entry as could be given in evidence.
We think the witness Peter Zartman was not competent to testify for the defendant, for this reason: He was the alienee, by mere gift, of one of his father’s farms. The debt in suit, if a debt at all, was a subsisting debt at the time of the alienation, due by his father to the plaintiff’s intestate. Hence the conveyance of the land would.be a voluntary conveyance, and therefore a fraud upon David Zartman’s creditors. That being so, the land could be followed in Peter Zartman’s hands for
Judgment reversed, and venire de novo awarded.