Nissley v. Brubaker

192 Pa. 388 | Pa. | 1899

Opinion by

Mb. Justice Gbeen,

We are very clear that the Act of June 3, 1887, P. L. 332, which conferred upon married women the right to sue and he sued in the same manner as if they were single, operated as a repeal of the proviso in the limitation act of March 27, 1713, which prevents the statute of limitations from running against married women until they become discovert. We consider this conclusion inevitable because a right to sue is fundamentally inconsistent with a disability to sue, and by consequence removes the disability. It follows, therefore, in the present case, that a right of action accrued to Mrs. Nissley to recover any money that might be owing to her by her father, immediately after the passage of the act of June 3, 1887. This being so, the statute of limitations began to run against her from and after the date of the act of June 3,1887. See Hicks’s Estate, Pabst’s Appeal, 7 Pa. Superior Ct. 274. Recurring now to the offers of proof in this case, we find that the offer covered by the fifth assignment was to prove that within six years from June 3, 1887, Isaac Brubaker, deceased, admitted to the witness in the presence of Rebecca Nissley’s husband that he was with his daughter about April 1, 1873, when she made title to John Rohrer for a piece of real estate belonging to her, and that when the'purchase money, $3,045, was paid it was received by him and that he had never paid the money to his daughter. This was a specific, definite offer to prove that the deceased had received the money of his daughter and had never paid it to her, and that the admission of the deceased to that effect was made while the statute of limitations was running, but before it had closed. The words in which the admission was made were not set forth in the offer, but the offer was rejected just as it was made, without objection on account of the omission of the precise words used. The inquiry results whether the offer should not have been received. The fact that Isaac Brubaker had received in 1873, $3,045 of money which belonged to his daughter, and that he had never paid it to her, was certainly a most important and relevant fact. It was of course competent to prove such a fact before the jury. Whether the proof when received would be sufficient to establish his legal liability to repay the money at the time this suit was brought, would depend upon just what was said at the time. If the words used were consistent with a promise to pay the debt they would suffice to toll the running of the statute. But that could only be known after the testimoiiy was heard. We think therefore that it was error to reject the offer in the broad manner in which it was made. The proof was competent, for it consisted of the party’s own declarations, the subject-matter was competent, because it tended to establish, or rather to confirm, a cause of action which was then pending. If, after it was all in, it was not sufficient to establish the legal liability of the declarant the court could readily so instruct the jury. But we do not think it can be said that'the offer should be rejected entirely. The matter offered would, in any event, be part proof of facts essential to the plaintiff’s right of recovery and, for that reason, it would be admissible. If on the rendition of the testimony it contained enough matter to toll the statute, or if it was followed by further testimony to that effect, it would or might authorize a recovery. For these reasons we sustain the fifth assignment. The first four assignments cover the substance of the fifth in detached parts and, therefore, would include the same matter in the aggregate, and hence the offers should have been received. These assignments are therefore sustained. The sixth assignment is not sustained as its subject-matter is of no consequence. The tenth and eleventh assignments are rejected as the matter of the tenth has no date, and of the eleventh has a date so remote that it would be of no consequence if received. The twelfth assignment cannot be sustained because in the state of the evidence as it stood then the charge was entirely correct.

The offers of proof covered by the seventh, eighth and ninth assignments, we think should have been received. They tended to prove the actual receipt of the money which was paid to Isaac Brubaker for his daughter’s property, and which prima facie tended to show a liability on his part to account for it. We therefore sustain these assignments.

Of course after all the testimony rejected on the trial has been received, it may not suffice to create a legal liability at the time of the bringing of this suit. On the other hand, it may suffice to establish such a liability, and for that reason it should have been received.

Judgment reversed and a new venire awarded.