82 Pa. 83 | Pa. | 1876
The judgment of the Supreme Court was entered, May 22d 1876,
To take a case out of the Statute of Limitations there must be an acknowledgment of the debt as an existing obligation consistent with a new promise to pay it, or an express promise to do so. To be consistent with a promise to pay the debt, the acknowledgment must be such as indicates an intention to pay the' debt existing at the time of the acknowledgment. The time of payment need not be immediate, but the intention to pay must be present. Hence any language inconsistent with this present intention must be inconsistent with a new promise; for a promise, if made at the time of the acknowledgment, necessarily imports a present willingness of the mind to enter into it. If the mind do not then intend, or is not then willing to pay, the very essential element of a contract is wanting. An acknowledgment is less in force than a promise, and hence the necessity of scrutinizing closely the extent of meaning the language of the acknowledgment has. In the present case the defendant, Houser, said, “ Why don’t you see the assignees of Hershman, and get the pro rata ? then he would pay the balance.” To another witness he said, “ Just hold on; that there was no use of making expense; that as soon as he knew what amount was wanting, after the assignees of Hershman would pay the pro rata or dividend hé would pay the balance.” ■ This was an acknowledgment of an existing debt, but does it exhibit an intent to pay the whole note ? This suit is for the entire debt, the whole
Judgment affirmed.