Landis v. Roth , 109 Pa. 621 ( 1885 )

Mr. Justice Paxson

delivered the opinion of the court,

The only question in this ease is, whether there was a sufficient acknowledgment of the debt to take it out of the Statute of Limitations. The testimony relied upon for that purpose was that of the plaintiff below. He said : “ When I got to Henry Landis, I said, I come for money, and he said, 1 will pay you six hundred dollars iu thirty days on the note (this note,)I will pay you the rest as quick as I can, but you must not be too hard on me......The old lady, Mrs. Henry Landis, spoke up saying, Roth, we will pay you every dollar if we have to pay it out of our pocket. Henry said, yes we will pay you.”

The learned judge charged the jury that “If it be true that this was all said, the latter part of their expressions is sufficient in the judgment of the court to enable the jury to find a positive promise.” The jury so found.

This subject has been so frequently and elaborately discussed that we may be excused from going over the ground again at'length, and it is sufficient to indicate the rule as laid down by the authorities, and then apply it to the facts of this case. In Miller v. Baschore, 2 Norris, 366, it was said: “In order to effect such a result there must be a clear and definite acknowledgment of the debt, a specification of the amount due, or a reference to something by which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay.” In the later case of Palmer v. Gillespie, 14 Norris, 340, it was held that the promise to pay need not be express. It was said by Justice Mebcub : “It is not essentially necessary that the promise be actual or express, provided that the other necessary facts are shown. A clear, distinct or unequivocal acknowledgment of the 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.”

The meaning of which is that where the debt is identified beyond all doubt, and distinctly acknowledged, the law will imply a promise to pay it; but it is not a subject for a jury to guess at.

'In the casé in hand the debt was not sufficiently identified. In the conversation testified to by the plaintiff there is not a word as to the date of. the note, its amount, or the balance due thereon. The note itself was not produced, and there is no evidence that the plaintiff had it with him. There is no certainty as to what debt or what note was referred to: any uncertainty either in the acknowledgment or identification of the debt is fatal: Burr v. Burr, 2 Casey, 284. In that case there was one actual payment on account, but this court held the debt was not identified. The evidence there was as follows: “Mother says, can thee let me have a little interest money on that note which I hold of thine? ” He said, “how much would thee like, mother? ” She said, “four or five dollars, and he gave her seven.” There was no evidence of the existence of any other note between the parties, yet it was held that the acknowledgment was insufficient. The present case is certainly no stronger, and as Burr v. Burr has been constantly followed to the present time, we are constrained to reverse this judgment.

Judgment reversed and a venire facias de novo awarded.