4 Pa. 321 | Pa. | 1846
In the case of Gilkyson v. Larue, 6 Watts & Serg. 213,-the court, in delivering judgment, say, «the acknowledgment of a debt is evidence of a promise,” but it ought to be plain, unambiguous, express, and so distinct and palpable in its extent and form as to preclude hesitation. By the terms of the act of Assembly, of the 27th of March, 1713, entitled « an act for limitations of actions,” the remedy on the cause of action, in actions upon the case, is taken away in six years after the cause of such action or suit has accrued, if the defendant chooses to avail himself of the statutory protection, and nothing remains but the moral obligation, which is held to be a sufficient consideration to support a new promise to pay, or what is tantamount or equivalent to such promise. In the expressions cited from Gilkyson v. Larue, it is established according to adjudicated cases, that a distinct, unequivocal acknowledgment of the debt will be sufficient to authorize an inferential or implied promise to pay. This is going as far as the court felt themselves authorized to go by adjudged cases, and we are not disposed to relax the qualifications and restrictions which are there annexed, in order to bring the acknowledgment within the rule. In the conversation to which the witness testified, as casually occurring between him and the alleged debtor, there was added to the acknowledgment a promise to pay. But an express promise, like the promise implied from an acknowledgment of the debt, must have the same requisites; that is, it must be plain, unambiguous, express, and so distinct and palpable in its extent and form as to preclude hesitation. The acknowledgment and promise in this case, as they were given in evidence, were vague, sh?iowy, and uncertain. The wit
The account commences in June, 1828; the present suit was not brought until the 13th of July, 1844, almost six years after the alleged acknowledgment, and after the death of the alleged debtor. It is a stale claim, and not entitled, under all the circumstances, to any relaxation of the most rigid application of the statute which the adjudged cases allow. Although at the time of the alleged acknowledgment, $7 50 was due and recoverable; yet, as more than six years had elapsed from the date of the last services rendered until the institution of this suit, the statute was a clear bar to those items of the account; because the alleged promise cannot be appropriated to them for the purpose of establishing a new era from which the statute would commence to run'; as they were then-in full life, and the acknowledgment added nothing to their legal vitality. The
In relation to the other-part of the account, wTe are of opinion that the alleged acknowledgment and promise were not sufficiently certain, precise, unambiguous, and definite, as to the account or nature of the demand and amount intended to be admitted, to take the case from within the range of the statute; and as the .court below instructed the jury, that if they believed the witness, the acknowledgment was sufficient, and the plaintiff was entitled to recover, they fell into an error.
The judgment- is therefore reversed, and a venire de novo awarded.