30 Pa. Super. 281 | Pa. Super. Ct. | 1906
Lead Opinion
Opinion by
The action in the court below was upon a promissory note of the defendant, dated April 1, 1886, payable one year after date. The testimony of the plaintiff showed that the indorsements of the payment of interest prior to April 1,1894, were in the handwriting of Sarah Peters, the payee of the note. Subsequently to that time, namely, April 1, 1894, April 1, 1895, April 1,1896, indorsements of interest for one year each were in the handwriting of Benjamin Peters, the husband of Sarah Peters, who died January 9, 1897.
It is objected on the part of the defendant that the payments of interest to Benjamin Peters and the indorsement by him does not bind the defendant, in so far as they toll the running of the statute, for the reason that Peters was a stranger to the note and the payments, even if made as indorsed, did not have that effect. •
It appears from the evidence that Sarah Peters, who died intestate, left her' husband, Benjamin Peters, and at. least one
Another question, however, is raised by the defendant’s assignments of error, which is' more serious. David K. Peters, the administrator of the decedent, being called as a witness and his testimony having been admitted under objection, testified as follows: “ Q. Look at that note (handing it to witness) ; in whose handwriting are those indorsements — the last three? A. My father’s, Benjamin Peters. Q. Were you acquainted with the handwriting of Benjamin Peters ? A. Yes, sir. Q. Have you seen him write? A. Yes, sir, I have seen him write. Q. Who was Benjamin Peters ? A. My father.Q. What relation did he bear to Sarah Peters ? A. He was her husband.” The indorsements referred to were dated April 1, 1894, April 1, 1895 and April 1, 1896. Were payments of interest made at the several dates named and were the indorsements made at the several times at which they purported to have been made ? There was no evidence in regard to these facts and the court submitted the case to the jury as to the credibility of David K. Peters, saying: “ If you believe the testimony of David K. Peters — and there does not seem to be anything submitted in the case impeaching his credibility, in the judgment of the court — your verdict will be for the plaintiff for $1,000, principal and interest, $373.55, making a
It is to be remembered that the note, which was the basis of the action, fell due April 1, 1887. The first indorsement of interest in the handwriting of Benjamin Peters was April 1, 1894. The statutory period of limitation had, therefore, expired before the first indorsement was made. There is evidence, it is true, that certain indorsements upon the note were in the handwriting of Sarah Peters, the payee. What they were and when they were made, however, does not appear in the evidence, the only evidence upon that subject being that of David K. Peters who testified: “ Q. Were you acquainted with the handwriting of Sarah Peters? A. Yes, sir. Q. Have you seen her write ? A. Yes, sir, I have seen her write. Q. In whose handwriting are the indorsements prior to 1894 ? A. In my mother’s, Sarah Peters.” If the indorsements thus made were offered in evidence, it does not appear by the record, as printed. They are not included in the offer of the note and the indorsements of 1894, 1895 and 1896. It was perhaps assumed in the court below and by counsel here that the indorsements made by Sarah Peters postponed the time for the beginning of the running of the statute beyond the date of the maturity of the note. This may be a fact, but it does not appear in evidence, and we must, therefore, take the indorsements made by Benjamin Peters for just what they were worth. Having been made, therefore, after the statutory period had closed, the reason for their admission fails and it is doubtful whether, standing alone, they are even admissible in evidence.
The principle upon which the indorsement of a payment on a promissory note by the holder thereof is admissible to toll the running of the statute of limitations is that it is against the interest of the party making it, but this is true only when the indorsement is made prior to the date at which the statute becomes a bar and, in order, therefore, to give it the effect which our decisions, contrary to those in England, have determined that it should have, it is necessary to show that the indorsement was made at the time at which it purports to have been made; otherwise, if made after the statute had become a bar, although dated before, it might be a merely self-serving declaration.
In Shaffer v. Shaffer, 41 Pa. 51, Mr. Justice Strong, who was of counsel in the case previously cited, says: “ Indorsements made by the promisee, before the statute has closed upon the right to maintain suit, are undoubtedly evidence of corresponding payments, to remove the bar of the statute, in this state, though no longer in England; but it has always been held that they are not evidence at all, unless proved to have been made while the statute was running: Addams v. Seitzinger, 1 W. & S. 243; Cremer’s Estate, 5 W. & S. 331. They are evidence made by a plaintiff for himself, and upon general principles would not be receivable at all. The exception is admitted, because indorsements by the plaintiff are declarations against his own interest, when made within six years. from the promise. When made afterwards, the reason for their admission entirely fails.”
In Hart, Exr., v. Bucher, 182 Pa. 604, Mr. Justice Sterrett, in delivering the opinion of the court, says: “ For the purpose of rebutting the presumption of payment which had arisen from lapse of time, the plaintiff offered the following indorsement on the bond recited in the mortgage, under date of April 1, 1885, viz : 4 John Bucher paid the interest on the within bond up to April 1, 1885 ; ’ (signed) ‘ John Hart ’ .and attested by B. B. Flickinger. The attesting witness, Flickinger, was called
In view of the fact that in this case the time elapsing between the maturity of the note and the first indorsement made by Benjamin Peters was more than six years, and between the last indorsement made by him and the bringing of suit by the administrators of Sarah Peters was within one month of the completion of the statutory period of limitation, it was important that these several indorsements should have been shown to have been made at the dates at which they purported to have been made respectively. There is no evidence upon this subject and the mere identification of the handwriting of Benjamin Peters was not conclusive evidence of the fact and dates of payment, as thereby indicated. The fourth and fifth assignments of error, are therefore, sustained.
The rule in Marsteller v. Marsteller, 93 Pa. 350, claimed by tbe appellee as being applicable to this case, does not apply, for the reason that a cause of action had accrued before the death of Sarah Peters. The rule in Marsteller is that the statute begins to run at the date suit may be commenced and, once begun, it is not stayed by a party’s death. If no action accrued prior to the death, none' accrues until grant of administration, and statute runs from such grant. The later cases cited by the appellee support the same rule but they have no application here for the reason already stated that the right of action was complete before the death of Sarah Peters.
Judgment reversed, with a new venire.
Dissenting Opinion
dissenting :
The note in suit was dated April 1, 1886, and was payable one year after date. Sarah Peters, the payee, died January 31, 1893, letters of administration upon her estate were issued December 7, 1901, and this action was brought by her administrators March 1, 1902. In their statement of claim they declared on the note, and averred that the defendant had paid the interest up to April 1, 1896. Attached to their statement and made part thereof, was what purported to be a copy of the note and the indorsements thereon, as follows:
“ April 1 interest paid for one year..... 1887.
April 1 interest paid for one year..... 1888.
April 1 interest paid for one year . . 1889.
April 1 interest paid for one year..... 1890.
April 4 interest paid for one year.....1891.
April 1 interest paid for one year..... 1894.
April 1 interest paid for one year..... 1895.
April 1 interest paid for one year..... 1896.”
The defendant pleaded the general issue, and on the day of trial added the plea of the statute of limitations. On the trial the plaintiffs offered to prove by David K. Peters, who is a son and one of the administrators of the estate of Sarah Peters, that Benjamin Peters, who died January 9, 1897, was her husband, and that the indorsements from April 1, 1887, to and including April 4, 1891, are in the handwriting of Sarah Peters and the three remaining indorsements in the handwriting of Benjamin Peters. Objection was made that the witness was not competent to testify to anything 'occurring before the death of Sarah Peters, whereupon the court said: “ Separate the offers. Start in and prove that which is admitted to be competent.” Adopting this suggestion, the plaintiffs proved by the witness that the last three indorsements are in the handwriting of Benjamin Peters, the husband of Sarah Peters, and then offered in evidence the note, together with these three indorsements. They then recalled the witness and under objection and exception were permitted to show by him that the indorsements from April 1, 1887, to and including April 4,18101, are in the handwriting of Sarah Peters. The testimony of the
Assuming, however, as I think we ought, that the indorsements in the handwriting of Sarah Peters are in evidence, the question of the effect -to be given to the indorsements made after her death becomes important.
The defendant’s counsel requested the court to charge: “ The testimony submitted by the plaintiffs shows that the plaintiffs are not the owners of the note in suit, and that defendant is not indebted to plaintiffs, and the verdict must be for the defendant.” The testimony here referred to is that relating, to the last three indorsements in the handwriting of Benjamin Peters made after the death of Sarah Peters and before letters of administration were issued upon her estate. But proof that the payments represented by these indorsements were made to him would not, of itself, warrant the inference that he had in some way acquired exclusive ownership of the note as against her children, who became administrators of her estate, and who have the note in possession.
Nevertheless he was not a stranger, but by reason of his relation to the deceased had such an interest in the note that an
Indorsements of payments on an instrument of indebtedness by the creditor, being against his interest, are evidence of corresponding payments, to prevent the operation of the statute, but not without satisfactory proof that they were made before the statute was a bar: Addams v. Seitzinger, 1 W. & S. 243; Cremer’s Est., 5 W. & S. 331; Shaffer v. Shaffer, 41 Pa. 51; Hart v. Bucher, 182 Pa. 604. Sarah Peters died within six years after the date of the maturity of the note, and Benjamin Peters died within six years after the date of the last indorsement made by Sarah; therefore the evidence brought both sets of indorsements within the rule above stated. But, as the appellant’s counsel well say, it is the promise, not the indorsement which is evidence of it, that tolls the statute; hence, they argue, the court ought to have submitted to the jury the question, whether the defendant made the respective, payments represented by the indorsements, as well as the question, whether the indorsements are in the handwriting of Sarah Peters and Benjamin Peters respectively. If there were any circumstances, though slight, tending to cast doubt or suspicion upon the evidence, furnished by the indorsements, or to suggest the possibility of some other explanation of them, I would fully concur with the learned counsel in this proposition; but I can find nothing upon which the jury would have been warranted in basing a suspicion even, that Sarah Peters and her husband set about the commission of what Chief Justice Gibson designated “ at least a moral forgery ” against their son-in-law, “ to obviate the anticipated consequences of their own apprehended supineness.” Assuming, as the jury found, that the indorsements were made by them, there is no warrant
Taking the view I feel constrained to take as to the indorsements in the handwriting of Sarah Peters, and considering the assignments of error in the light of the evidence furnished by them as well as the other indorsements, I am compelled to differ from the majority of nw brethren, and to conclude that the judgment ought to be affirmed.
Judge Porter authorizes me to say that he concurs in the foregoing dissent.