Palmer v. Gillespie ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court,

This contention relates to the allowance of a set-off claimed by the plaintiff in error. His right thereto is alleged to have arisen on this statement of facts: A purchase of oil lands was contemplated, in which both these parties and some others should be interested. The purchase was to be made in the name of the defendant in error; but in fact for the benefit of all who contributed towards the purchase-money, according to the amount subscribed by each respectively. The plaintiff in error testified that for this purpose he put $750 into the hands of the defendant in error; but the latter did not so invest it, and afterwards promised to pay it back to him. Evidence was given tending to show that one piece of land was purchased by him and deed therefor taken in his name, and that he afterwards conveyed the same to one Hail-man without declaring any trust therein for the plaintiff in error. Whether any right of the latter in the land was then recognised to exist is a question in dispute. It seems, however, if any was recognised it was not equal to the whole $750. This sum had been advanced by the plaintiff in error in two instalments. The first of $250, the latter of $500. This suit was brought more than six years after the money was thus advanced. To avoid the effect of the Statute of Limitations, the plaintiff in error relied on promises or admissions of indebtedness alleged to have been made within the six years. The learned judge charged substantially that, notwithstanding the defendant in error may have kept this money and did ■ not invest it in the oil property, yet, as that was more than six years before suit brought, to make him liable it was necessary that he “ should make an actual promise to pay, within the six years ; should admit it, and say he would pay it before,” he would now be liable therefor. Again he charged, “ now, the transaction being more than six years old at the time of the bringing of this suit, unless there was a promise to pay it, it would not avail.”

In so charging we think the learned judge erred. It is not essentially necessary that the promise be actual or express, provided the other necessary facts are shown. A clear, distinct and unequivocal acknowledgment of a debt is sufficient to take a case out of the operation of the statute. It must be an admission consistent with a promise to pay. If so, the law will imply the promise, without its having been actually or expressly made. There must not be uncertainty as to the particular debt to which the admission applies. It must be so distinct and unambiguous as to remove hesitation in regard to the debtor’s meaning: Fries v. Boisselet, 9 S. & R. 128; Bailey v. Bailey, 14 Id. 195; Allison v. James, 9 Watts 380 ; Gilkyson v. Larue, 6 W. & S. 213; Hazlebaker v. Reeves, 2 Jones 264; Davis v. Steiner, 2 Harris 275; Johns v. Lantz, 13 P. F. Smith 324. In this last case it was said by the present chief justice, “ no case, however, has ever gone the length of saying that there must be an express promise to pay in terms.” Watson’s Executors v. Stern, 26 P. F. Smith 121, and Senseman et al. v. Hershman et al., 1 Norris 83, declare the rule to be as stated in the cases we have cited.

Miller v. Basehore, 2 Norris 356, was not intended to overrule the long line of preceding cases. The generality of the language therein used, must therefore not be understood as requiring an express promise; but a promise that may be clearly implied. The rule, as held in the other cases cited, was approved and declared in Rider v. Kinger, decided last spring at Harrisburg.

Inasmuch as the jury might find, under the evidence, that at least one part of the money was in fact, never invested in land, the language covered by the first assignment may have been calculated to mislead 'them. It appears to assume that both sums should be held as one payment. The evidence bearing on each ought to be separately presented to the jury. This can be done on the next trial. '

■ Judgment reversed, and a venire facias de novo awarded.