Finkbone's Appeal , 1878 Pa. LEXIS 76 ( 1878 )

Mr. Justice Gordon

delivered the opinion of the court,

The questions presented for our consideration, are-, 1. Whether the paper, executed by Dr. Wiley to the appellant, is of such a character as to bring it within the operation of the Statute of limitations ? 2. Affirming this proposition, was there such a subsequent acknowledgment of the claim as relieved it from the bar of that statute ?

The paper under consideration is in the words and language following, to wit: “Received of Mary Finkbone, at different times since 1862, $475 — for safe-keeping — which is to be returned to her in such amounts as she may want. $475. Leesport, May loth 1868. Penrose Wiley.” On the same piece of paper, and immediately under the above receipt, are the following: “ Received October 11th 1869, of Mary Finkbone, thirty dollars, to be kept and returned to her whenever she shall want it.

“$30. Penrose Wiley.”

It is obvious that the obligation, first above stated, is not in the nature of a due-bill, but rather in the nature of a bailment for safe-keeping, or of a deposit, to be returned on demand. It was. due and payable, only, from the time when demand was made, and until such demand no suit would lie for its recovery. Such being the fact, the case is brought directly within the ruling of the Girard Bank v. The Bank of Penn Township, 3 Wright 92, wherein it was held, that the bank could not defend against a claim for a deposit, on the ground that no demand had been made therefor within six years. This decision is put upon the ground that the engagement by the bank with the depositor was not to pay absolutely and immediately, but only when payment should be required, and, that it followed, that no right of action existed, nor did the statute begin to run until after demand made. It is also noteworthy that the case of Thorpe v. Booth, 1 Ry. & Moody 388, is approved, in which the same rule is applied to a note, payable on demand, given by one private person to another.

Were there no other Pennsylvania authority bearing upon this subject, we might consider the question as authoritatively settled, but we have Laforge v. Jayne, 9 Barr 410, which would seem to adopt a principle the very converse of that above stated. It was there held, that a promise to return a specific sum on demand, borrowed on Pike county checks, was barred by the statute if demand were not made within six years from the date of the promise; and Codman v. Rogers, 10 Pick. 112, was cited in support of the ruling. Now, it is remarkable, that Judge Strong, who delivered the opinion in the Girard Bank case, does not mention Laforge v. Jayne, though it was cited by the counsel for the plaintiff in error, but he does refer to Codman v. Rogers, on which it was based, in order to show that this latter case was not authority for the rule adopted. The two cases do, indeed, present some differences by which they might have been distinguished; but it was, no doubt, felt that any effort of that kind must be regarded as but a factitious attempt to exhibit a difference in cases which, though slightly variant in fact, were not so in principle, therefore the case itself ivas passed sub silentio, whilst its doctrine was overruled. We feel warranted in adopting the later case, not only because it was the more carefully considered, but also because it accords better with the general rule that the statute cannot begin to run until the cause of action has accrued.

In addition to the reason thus stated there is yet another why the statute does not operate as a bar in this case. As has already been stated, Dr. Wiley wrote the subsequent receipt of October 11th 1869, upon the same piece of paper and directly under the former. It is very certain, therefore, that the claim in controversy Avas, at that time, not only before his eyes but in - his possession ; when, therefore, he wrote the subsequent receipt upon it and re-delivered it, what was that but an acknowledgment, in the most distinct and unequivocal manner, that, on the 11th of October 1869, he held, for the use of Mary Einkbone, four hundred and seventy-five dollars, plus thirty, or a gross sum of five hundred and five dollars ? It amounts to a re-statement of the account in which thirty dollars are added to the former indebtedness. It is precisely, in its effect, as though Dr. Wiley had delivered, to the appellant, at the date of the last receipt, an account stated setting forth' the receipt of $475, on the 15th of May 1868, and of $30 on the-11th of October 1869. Under this view of the case, we need hardly add that the statute formed no bar to the claim in controversy, and that that claim might not to have been rejected.

The decree of the Court of Common Pleas is reversed. Costs to be paid out of the assigned estate, and a redistribution is ordered.