258 Pa. 277 | Pa. | 1917
Opinion by
Plaintiff’s action against the administrator of the estate of John E. Reyburn, deceased, is to recover the sum of $4,036.15 with interest, being the balance claimed to be due on a book account extending over a period of years from 1903 to 1908 for maintenance and boarding of horses and money expended by plaintiff for defendant’s benefit. The copy of the account attached to the amended statement of claim showed'several credits, none of which was within six years previous to the beginning of suit on July 14,1914. The original statement of claim showed a credit of $700 on July 16,1908, and defendant, believing no defense existed to the claim, omitted filing an affidavit of defense, and permitted plaintiff to take judgment. Subsequently defendant discovered the payment entered as of July 16, 1908, was in fact made in 1907, instead of 1908, and thereupon took a rule to show cause why the judgment should not be opened which was later made absolute.- Plaintiff, however, was permitted to file an amended statement setting up a payment on account under date of December 30, 1911, and an ac•knowledgment of the debt and promise to pay made December 11, 1908. Defendant in his affidavit of defense denied the alleged payment on account and pleaded the statute of limitations. At the trial of the case plaintiff offered in evidence the statement of claim admitting receipt of $100 on account, but gave no further evidence concerning the payment. The trial judge held the evidence of acknowledgment of the debt insufficient to toll the statute of limitations and directed a verdict for defendafit. A motion by plaintiff for judgment non obstante veredicto was overruled and this appeal followed.
The evidence relied upon as an acknowledgment of the debt is the testimony of a witness who, at the request of plaintiff, called upon Reyburn at his office in city hall on December 11, 1908, when the following conversation took place: “I told him what I wanted. I said Mr. Markee wanted to go west on Saturday to St. Louis and he needed money. And he got the statement out of the - drawer. Q. What statement? A. The statement he had got the first of the month. Mr. Markee had sent him a statement...............Q. Did you see it? A. Well, I saw him pull it out and look at it. I did not particularly notice it, Q. What did he say? A. Well he said ‘Tell Bill to come in on Saturday and I will pay him part of that’ or something to that effect. Q. Do you know the amount that was due by that statement? A. I couldn’t tell without looking at the books. It was thirty-nine hundred and something.” On being further questioned as to exactly what was said at the interview the witness testified: “Well, it was in the mayor’s office that I saw him,..and I had a statement in my pocket, but I didn’t have to use that, for he pulled his out of the drawer. And I explained about Mr. Markee wanting to go west on. Saturday. This was on Friday that I was there. And h,e said ‘Well, you tell Bill the claim is all right and
To toll the statute of limitations there must be a clear and unequivocal acknowledgment of the debt and a specification of the amount or a reference to something by which the amount can be definitely ascertained, coupled with an express or implied promise to pay: Ward v. Jack, 172 Pa. 416. These, requirements will be strictly enforced: Shaeffer v. Hoffman et al., 113 Pa. 1; Shaffer’s Est., 228 Pa. 36. The evidence in this case, at least so far as the identification of the debt and its amount is concerned, does not meet these requirements.
The judgment is affirmed,