Farley v. Kustenbader , 3 Pa. 418 ( 1846 )

Sergeant, J.

The rule is now established by repeated decisions, that an acknowledgment of a debt, to take it out of the bar of the statute of limitations, must be clear, distinct, and unequivocal : otherwise no promise to pay can be inferred from it. That is not the case here. It is uncertain what amount the defendant offered, or whether he offered it as a compromise, or as a payment in part, or of the whole. Zimmerman is the only witness; and he says he saw the defendant offer a bank note to the plaintiff, but does not know how much, for costs as a witness in behalf of the defendant in a former suit. The plaintiff would not take the money, saying if the defendant would give it all to him he would take it. He cannot tell whether it was a five or ten dollar note, or either. On this evidence the court left it to the jury to determine whether it was an offer of part payment, or only an offer of the note for what costs he owed him, by way of compromise. But there is no evidence from which the jury could determine either of these alternatives ; they could at best but conjecture: whereas, to make it such an acknowledgment as amounts to a promise, it should be shown clearly by some evidence, that the offer was in payment of part of the debt. No testimony was given but that of Zimmerman, and his evidence leaves the matter uncertain and obscure.

This dispenses with the necessity of examining the other points, whether a promise within the six years is sufficient; and therefore, at present we give no opinion on it. ,

Judgment reversed, and a venire facias de novo awarded.