Lowrey v. Robinson , 141 Pa. 189 ( 1891 )

Opinion,

Mr. Justice McCollum:

The refusal of the trial court to strike out evidence received without objection, or to enter a compulsory nonsuit, is not reviewable here, and upon this ground the first, second, and fifth specifications of error are dismissed: Montgomery v. Cunningham, 104 Pa. 349; Schubkagel v. Dierstein, 131 Pa. 46.

The third, fourth, and sixth specifications may be considered together, as they raise substantially the same question.

In 1887, Lowrey brought this action against Robinson’s administrator to recover forty dollars, which he alleges he loaned to Robinson in 1875. Slocum testified on the trial that some time in the year 1875 he saw Lowrey hand twenty dollars to Robinson, but that he did not hear any conversation between them respecting it. An unexplained delivery of money or a check by one person to another, does not create the relation of debtor and creditor between the parties; the presumption in such case is that the money or check was received in payment of an antecedent debt, and not as a loan. There is no evidence in this case of anything said or done b}*- the parties within the next seven years explanatory of this transaction, or which would render Robinson liable to an action for the money so delivered to him. It is claimed, however, that in 1883 or 1884 Robinson made some declarations to the effect that he had previously borrowed money of Lowrey which he intended to pay when he got ready or was able. But none of these declarations referred in terms to the alleged loan in 1875, to the time when any loan was made, or the amount thereof. They were offered and received for the purpose of establishing an acknowledgment of or a promise to pay a pre-existing debt, and of removing the statutory bar to its collection. They were not intended to and cannot create an obligation, nor convert that which was a payment or gift into a loan.

The sole reliance of the appellee is the declaration testified to by Alfred Townsend, and on that the court below permitted a recovery. Is it sufficient to remove the bar of the statute, in a case where the existence of the debt is satisfactorily shown ? On this point, Townsend testified as follows :

“ Mr. Lowrey gave me a bill to go down to Mr. Robinson’s for to collect some money. Q. Did you see Mr. Robinson ? A. I did, sir. Q. What conversation did you have with him about it ? A. I gave Mr. Robinson the bill, and he looked it over, and he said, — -there was a bar bill on it, and he said that the money — that he didn’t have it just at present, but he intended to pay it when he had it; that he didn’t have it at that time. Q. The borrowed money he intended to pay, but he didn’t have it at that time? A. Yes, sir. Q. Say anything about anything else? A. He said the other bill, — why, he thought he had paid enough of that kind. Q. What did you mean by the other bill ? A. The bar bill. Q. He said about the bar bill that he thought he had paid enough of bar bills ? A. Yes, sir. Q. Do you remember how much the borrowed money was ? A. The bill said forty dollars. Q. When did that conversation occur ? A. It was either some time in May or June, in 1884.”

It is noticeable that there is not in the conversation detailed by Townsend any admission by Robinson that he was indebted to Lowrey for borrowed money in any sum whatever, nor any promise to pay him any sum at any time. The bill which was presented to Robinson was not exhibited on the trial, and no attempt was made to account for its non-production. The items of it showing dates and amounts were not given. The inferences of counsel, though assented to by the witness, are not a satisfactory substitute for the declarations of the party whose estate it is sought to charge, nor is the statement of the witness that “ the bill said forty dollars ” a sufficient identification of the alleged loan. A claim twice barred by the statute of limitations should have a better foundation as respects its origin and the subsequent acknowledgment of its validity, than is disclosed by the evidence in this case. A declaration of an intention to pay is not the equivalent of a promise to pay; it is more in the nature of the expression of a desire to pay, and from this there is no implication of a promise. In this case, there is no distinct and unconditional promise to pay, nor clear and unequivocal acknowledgment and identification of a debt, and the proofs of an original indebtedness are wholly inadequate.

Judgment reversed, and a venire facias de novo awarded.