Kelly v. Eby , 141 Pa. 176 ( 1891 )

Opinion,

Mr. Justice McCollum :

The claim of the appellee, briefly stated, is that on the thirtieth of December, 1884, she loaned three hundred and fifty dollars to the appellant, who was then a married woman residing with her husband; and that about two weeks after her husband’s death, in March, 1888, she referred to the loan and said to the appellee: “ According as I get the money from my boarders, I will pay you so much till I pay you the money.” The appellee testified that she handed the money to the appellant in the back room of the latter’s house, when they were alone; that a day or two afterward she called upon the husband of the appellant, and obtained from him his note for the moneys payable in one year, with interest; that at the expiration of the year he paid her the interest and gave her a new note; that while he lived he annually paid the interest and renewed the note, and that the last note, which was given on the second of January, 1888, and payable one year thereafter, with interest, she still holds. There is no evidence that anything was said by the parties, at the time of the alleged loan, about the payment of interest or the return of the principal; and there is nothing whatever to fix its terms except the subsequent dealings of the appellee with the husband of the appellant respecting it. The only corroboration of the story of the appellee in relation to the loan is found in the testimony of her brother, to' the effect that the appellant, on the twenty-ninth of December, 1884, called on him, and inquired for his sister, and said that she wanted to borrow some money. All of this evidence is distinctly and in detail denied by the appellant, who says that the loan was made by her husband at the request of the appellee, and she is strongly corroborated in her statement by the admitted course of dealing between the parties for the next three years.

The learned judge instructed the jury that the appellee was entitled to recover, if they believed her story as to the loan and the promise made by the appellant after the death of her husband. It is contended that the portions of the charge embraced in the first and second specifications of error were misleading as to the facts, and injurious to the appellant, in that they suggested the perpetration of a fraud on the appellee with reference to the note. It is clear from the evidence produced by her tliat she exhibited the note to her brother on the day she received it, and that she knew it was the note of the husband for the money she claims she loaned to the wife. There was no offer to prove that the maker of the note was insolvent at the time of the alleged loan, and the uncontradieted evidence is that he was then, and for two years after, doing a good business as a wholesale grocer. It is not pretended that the appellee at any time requested the appellant to give her a note or receipt for the money, or that she was induced by any misrepresentation or artifice to accept the note of the husband. The undisputed fact is that she applied to him for a note for the money, and that she obtained it. As there was nothing in the testimony to justify the inference that “ a note of the husband, then insolvent, was given to a woman ignorant of its contents,” the charge was misleading in this respect, and prejudicial to the appellant.

The fact that the husband gave his note for the money, was corroborative of the claim of the appellant that it was loaned to him, and was for the consideration of the jury; but it was not a sufficient answer to the suit, if the appellant borrowed the money, and after the death of her husband, gave to the appellee a distinct and unequivocal promise to pay it. If the loan was made to the appellant, as claimed, she was under no legal obligation to pay it; but the moral duty arising therefrom was a sufficient consideration to support an express promise made after coverture: Hemphill v. McClimans, 24 Pa. 367. The promise, to be available, must be clear and distinct, and it is then enforceable only according to its terms. This is the rule with reference to promises relied on to remove the bar of the statute of limitations; and it applies with equal force and greater reason to promises set up to validate the contracts of infants and married women: Chandler v. Glover, 32 Pa. 509. Acknowledgments alone, if consistent with a promise to pay, may remove the bar of the statute, but they will not validate a promise or contract that is void. An express promise is necessary, and the action must proceed upon it. The promise testified to by the appellee was not absolute and unqualified; it was at most a promise to pay from board money, when received by the promisor. If it was sufficiently distinct and clear, there could be no recovery upon it, without proof that the promisor had received the fund from which she proposed to pay. But was the promise intelligible, and such as could be enforced? It was not a promise to apply in payment of the loan all the money she received from her boarders, nor to appropriate a defined portion of it to that purpose. It was vague and indefinite, and, in our opinion, insufficient to support an action. The first, second, third and sixth specifications of error are' sustained, and the fourth and fifth specifications are dismissed.

Judgment reversed, and venire facias de novo awarded.