52 Pa. Super. 24 | Pa. Super. Ct. | 1912
Opinion by
As long ago as 1822 Chief Justice Tilghman, in Fries v. Boisselet, 9 S. & R. 128, said: “It would be a laborious and unprofitable task, to examine all the cases which have been decided, on the statute of limitations.” With some added force and propriety may that statement be repeated now when nigh a century of litigation has increased by a legion the cases then in contemplation of that distinguished judge. Farther along in the same opinion he declares this principle as properly deducible from all of the cases, to wit: “The principle which I consider as established with us, is, that the acknowledgment of the debt is sufficient evidence to infer a promise to pay, unless it be accompanied with words inconsistent with a promise.”
Where a plaintiff, seeking to escape the bar of the statute, must rest his all-important acknowledgment on certain words uttered or written by the debtor, difficult ques
In a judicial inquiry the identification of a debt, like that of a person or other object, is a fact to be established by proof. In such a case there is of course the preliminary question of law to be determined by the court, to wit: Is there any evidence to be submitted to the jury sufficient to warrant the finding upon which the plaintiff must rely? If there be such evidence, then the question is one to be resolved by the jury under proper instructions from the court.
As we have already seen in the case before us, the fact of a payment is admitted. To enable the jury to identify the debt upon which that payment, was made, the plaintiff, who was a competent witness for that purpose, took the stand. He testified, that at the time payment was made, and before and since, there was no other debt due and owing to him from the defendant except the one on which his suit was founded. He declared that the payment was made on account of that debt and had been so •credited. The defendant made no attempt to deny this testimony or to assert that there was any other debt in existence due and owing from him to the plaintiff except
Now there may be cases where a payment is made, but is made under such circumstances or accompanied by such a statement as would necessarily overthrow the legal presumption that the payment was an acknowledgment of a further or additional debt and consistent with a promise to pay it. It is clear that where a debtor makes a payment but accompanies it with a statement that this is all he owes and that he will pay no more, the law could imply no promise by him to make a further payment in the face of his express repudiation of such an intention. There is' nothing, as we view it, in the letter of the defendant in
As the controlling questions of fact were submitted by the learned trial judge to the jury in a charge which recognized every right in the defendant accorded to him by the law, we must accept their verdict as establishing every fact necessary to toll the statute which was the only defense offered by the defendant. The assignments of error are therefore overruled.
Judgment affirmed.