Patterson v. Neuer

165 Pa. 66 | Pa. | 1895

Opinion by

Mb. Justice McCollum,

This is a very stale claim and the only support it has is in the uncorroborated testimony of the plaintiff, which was contradicted in every material feature by the testimony of the defendant. It is for services alleged to have been rendered by the plaintiff for the defendant twentj^-two years ago under a verbal agreement between them. The suit to enforce it was brought twelve years after it matured. The statement of it was filed eight years after the writ was served. The gross laches in the prosecution of the claim and the circumstances surrounding it raise a serious doubt concerning the merits and integrity of it. Amongst the matters which contribute to this doubt we note the relations and course of dealing between the parties before, during, and after the period in which it is alleged the services sued for were performed. The plaintiff was employed by the defendant as a carpenter nearly four years. In the last year he was employed he was paid four dollars a day and in the preceding years three dollars a day for his labor. The claim he now makes is for supervising the construction of certain buildings for the defendant in the fourth year, and is in addition to the four dollars per day paid to him for work during that period. He alleges that for supervising the construction of the defendant’s buildings he was to receive five per cent of their cost and for an occasional inspection of the work on the Leavenworth block, for the proper performance of which the defendant was responsible, lie was to receive $200. His whole claim for this alleged, supervision is $1,650, with interest thereon from May 1,1872. In November, 1875, the plaintiff bought of the defendant a lot in Wilkes-Barre which he finished paying for on the 28th of January, 1884. The payments on the lot were made annually and they amounted to a sum less than the alleged indebtedness of the defendant to the plaintiff at the time of the purchase. It strikes the ordinary mind as somewhat singular that the defendant should pay or agree to pay the plaintiff thrice as much for his services the fourth year as he paid for like services during the preceding three years, and that the plaintiff should contract for and make payments on account of the lot as above stated and in the meantime allow the statute of limitations to bar the alleged indebtedness of the defendant to him. It must be conceded, we think, that the undisputed facts in the case have a decided tendency to discredit the plaintiff’s claim and to substantiate the defendant’s denial of it, and while the evidence was sufficient to carry the case to the jury on the question of the alleged contract and the services thereunder, the preponderance of it against the claim was so great that the allowance of the defendant’s motion for a new trial would have been entirely proper.

But assuming that the indebtedness once existed, as claimed, was there proof of such an acknowledgment by the defendant of its existence as the law deems a sufficient answer to the plea of the statute of limitations ? In considering this question we note the trend and effect of the decisions, without entering upon an extended citation and review of them. The statute of limitations as a defence to an action is no longer viewed with suspicion or thought to be unconscionable. It is now almost universally regarded by the courts as a statute of repose and is liberally construed by them. In England and in many of the states of this country a written acknowledgment or promise is essential to remove the bar of the statute. In Pennsylvania, however, an oral promise or acknowledgment is sufficient if it has the qualities demanded by the decisions in relation to it, although Rogers, J., in delivering the opinion of this Court in Kensington Bank v. Patton, 14 Pa. 479, said that the law on the subject would not be upon a proper footing until a written acknowledgment or promise was required. To remove the bar of the statute there must be a clear and definite acknowledgment of the debt and a specification of the amount due or a reference to something by which such amount can be definitely and certainly ascertained: Miller v. Baschore, 88 Pa. 356. Any uncertainty either in the acknowledgment or identification of the,debt is fatal: Landis v. Roth, 109 Pa. 621.

Is the acknowledgment or promise shown in this case sufficient to remove the bar of the statute ? The learned judge of the court below thought that the conversations which plaintiff testified he had with defendant in the winter of 1881 contained an acknowledgment by the latter of the claim in suit and a promise to pay it, but he rightly conceded that there was no acknowledgment or promise previous to that time which had the qualities required by the decisions on the subject. In order to determine whether the conversations referred to contained an acknowledgment sufficient to take this stale, extraordinary and admittedly barred claim out of the operation of the statute, they must be considered separately. If either of them contained such an acknowledgment, recourse to the other is unnecessary. If it does not appear in either of their conversations it cannot be inferred from both. In other words several insufficient acknowledgments will not constitute a sufficient one. It is claimed that, in the first conversation referred to, the defendant said to the plaintiff: “ You need not be a bit afraid of me, I will pay you everything I owe you. I will pay you every cent.” But these words did not contain an admission that the defendant owed the plaintiff the claim in suit. They did not constitute an acknowledgment or promise which is “so distinct and palpable in its extent and form as to preclude hesitation.” They did not import more than the words, “ I will pay you all I owe you,” which were held in Miller v. Baschore, supra, insufficient to remove the bar of the statute. Nor do we think there is anything in the conversations detailed by the plaintiff which plainly refers the alleged promise of the defendant to the claim in suit. What the plaintiff said about his claim was “ vague, shadowy and uncertain,” and manifestly the outcome of anger aroused by the defendant’s request for a payment on the lot. It furnished no basis for holding that the alleged promise was to pay $1,650 with nine years’ interest thereon for work done during the year in which the defendant paid him for his services more .than he had before or has since received for them. It is well to remember in this connection that the plaintiff was testifying to a conversation which occurred twelve years ago, and in which, according to his account of it, he was an angry participant. Subsequent to the conversation we have considered, the plaintiff made a payment on the lot and said to the defendant, “ If you can make any money out of it, .all right, for I want mine,” to which the latter replied : “You will get it, every cent.” “ No fear of that, I will pay you every cent I owe you.” “ He would give credit for the $250 on that lot,” and “ he would pay the rest just as soon as ever he could.” But in this conversation, as in the preceding one, there* was a failure to specify the amount of the debt, or furnish any basis on which the amount of it could be definitely and certainly ascertained. We think, therefore, that the plaintiff failed to show on the trial such an acknowledgment or promise as is required to remove the bar of the statute.

The specification of error is sustained.

Judgment reversed and venire facias de novo awarded.