Henry v. Zurflieh ( 1902 )

Opinion by

Mb.. Justice Dean,

John Shaffer, of whose estate Anna F. Zurflieh, defendant and appellant, is administratrix, was for many years prior to his death, in April, 1898, a retail merchant in the borough of Dunmore, Lackawanna county. He was a man of considerable means, possessed of real estate and securities approximating in value, $50,000. Joseph Henry and his wife, Mary Henry, were also residents of the same borough and customers at the store of Shaffer; Henry owned a dwelling house and lot, of the value of $2,000 to $4,500, according to the conflicting testimony of witnesses on one side or the other. The husband was a man of dissolute habits and was incumbering his property. Shaffer was a friend of the wife and up to December 20,1886, had extended to the family a credit on book account of about $1,500. On that day the husband and wife conveyed to him the dwelling and the lot where they lived, called the Brook street property. The consideration named and receipted in the deed was $2,500. The wife alleged, that this was only part of the consideration; that at the time she joined her husband in the execution and delivery of the deed, he, Shaffer, promised to cancel the store book account, pay some other small debts owing by her and her husband to third persons, and in addition, at the expiration of one month, pay to her $3,000 in money. On this promise this suit was brought on May 24, 1899. The alleged promise was stoutly denied by defendant, who averred, that the only consideration was that expressed in the deed, and that this had been fully paid by Shaffer in his lifetime and on or about the date of the conveyance. As a further plea, the defendant set up the statute of limitations, to which last plea, plaintiff replied, a new promise to pay made within six years before suit brought.

There were many witnesses called whose testimony and a number of letters written to her by Shaffer, tended to establish her claim, and there was much evidence, both positive and inferential, adduced by defendant in denial of it.

The learned judge of the court below in a very careful and impartial charge submitted the conflicting evidence to the jury who found for the plaintiff. The court afterwards, in an opinion filed, overruled a motion for a new trial and entered judgment on the verdict. We have now this appeal by defendant, with fifteen assignments of error.

The first to fourteenth assignments, inclusive, complain, either of the refusal of the court, to charge, that the parol evidence adduced by plaintiff to sustain tbe oral promise to pay $3,000 to Mrs. Henry in one month from the delivery of the deed as^ part of the consideration was wholly insufficient to establish such promise, or of the admission of incompetent and irrelevant evidence to prove the old promise or the new one after tbe statute had barred the claim.

We do not think the evidence, if believed by the jury, was insufficient. The consideration expressed in the deed and in the receipt appended to it was $2,500. The plaintiff sought to prove that the real consideration was $4,500 presumptively, the $2,500 was the entire purchase money. . But this presumption can be overcome by parol evidence establishing other considerations. Undoubtedly, parol evidence would not be admitted or permitted to contradict or vary the written covenants, in the absence of fraud or mistake, but this rule does not apply to parol evidence to vary or contradict the written expression of the consideration. At an early day the rule was enforced against any attempt to vary or contradict even this, but of later years, in this particular, the rule has been almost wholly departed from or relaxed. See a full discussion of the whole subject by Justice Kennedy in Jack v. Dougherty, 3 Watts, 151, a case decided by this court in 1834. This is the leading case, and it has been followed, almost without variation since in a multitude of cases, all holding that the consideration expressed is only presumptive evidence that it is .the real consideration, and that the presumption may be overcome by parol evidence showing another or greater consideration. The reason for relaxing the .general rule in this particular is stated to be, that a change in or contradiction of the expressed consideration, touches not the covenants of grantor and grantee in the deed, and neither limits nor enlarges the grant. Although the authorities have settled, that the real consideration in the case before us can be proven by parol, many of the cases are not so pointedly applicable to the facts here, for in most of them the consideration was merely nominal, such as $1.00, or love and affection, while the parol evidence established a money consideration or the relinquishment of a valuable right: this larger or enhanced consideration was not inconsistent with that expressed ; it only added to it. In the case before us, the $2,500, at least approximately, was the value of the property; that proven by parol, $4,500, to a certain extent, is inconsistent with the sum expressed; but none of the cases make any exception because of this apparent inconsistency between the written and parol consideration, and we cannot make one here. It was, therefore, competent for plaintiff to prove by parol a greater consideration than that nominated in the deed. Was plaintiff’s evidence for that purpose sufficient ? We think it was, if believed by the jury. We might not have credited it, but our functions are not those of a jury. While no reason is given why this additional $2,000 was not put in the deed, yet two witnesses, John Hoffman and Ferguson Kiple, testify, that they heard the bargain made and heard Shaffer expressly promise to Mrs. Henry that he would pay her within one month $3,000 in addition to the outstanding debts he would pay, and his own debt which he would have canceled; further, that he would pay her interest on the $3,000 until the principal was paid ; there is then the testimony of Thomas and Ida Widdowfield to whom he distinctly acknowledged that he owed to Mrs. Henry $3,000 on the Brook street propert y and was going to pay it soon. This was followed by a number of letters from Shaffer to Mrs. Henry, some of them containing considerable amounts of money with promises of further payments. While not expressly repeating the original promise, they are in accord with it and to a degree corroborative of it. It is more than insinuated in the argument of appellant, that the letters, the payments and the promises, are suggestive of a meretricious relation between Shaffer and the plaintiff and are entirely reconcilable with the theory of an unlawful consideration. It is sufficient for us to sajr, that such a suggestion was not made at the trial in the court below; no request was made for instructions to the jury on that subject, nor so far as appears, was it touched upon in the argument to them. We do not raise questions de novo but review those tried and considered in the court below; therefore, it is not necessary for us to consider further this subject.

The court properly, in this guarded language, submitted the evidence to the jury:

“ As I say the first proposition is, was the conveyance made for the consideration recited in the deed, to wit: $2,500 ? The presumption is that it was, as I said to you, and unless the plaintiff has rebutted that presumption, she fails in her action, and your verdict must be for the defendant, and that is the end of the case. And so the burden is on the plaintiff to satisfy you by the character of evidence which I have called your attention to, that is to say, by a preponderance of the testimony— first, that the agreement was as she contends that the considration would be §4,500, and that the balance due her after the cancelation of certain debts and the paying of certain outstanding claims was §3,000 ; that is, she must prove that there was such a bargain at that time in December, 1886 ; that is the first thing for her to prove.”

The attention of the jury was then called to all the material evidence on each side. We can detect no error in the charge, nor can we discover any erroneous ruling on the admission or rejection of testimony. Therefore, the first fourteen assignments of error are overruled.

The fifteenth assignment raises the question, whether the plea of the statute of limitations was sustained by the evidence. The suit was brought May 24, 1899 ; the original oral promise to pay the §3,000 was made December 20,1886, nearly thirteen years before, and of course the statute was a bar unless there was a new promise within six years before suit brought. If the debt established by the original promise remained unpaid, it was still a debt and a sufficient consideration to support a new promise.- Plaintiff alleges such new promise was made. In Palmer v. Gillespie, 95 Pa. 340, we said:

“ A clear, distinct and unequivocal acknowledgment of a debt is sufficient to take a case out of the statute. It must be an admission consistent with a promise to pay. There must not be any uncertainty as to the particular debt to which the admission applies. It must be so distinct as to remove hesitation as to the debtor’s meaning.”

This is the substance of our ruling in very many cases. We need not advert to evidence of frequent promises outside the six years before suit; we only call attention to the testimony of but two witnesses. Ida Widdowfield, daughter of plaintiff, testified that she was present at an interview between her mother and Shaffer in 1896, that her mother said to him that she came to see him about the money, §3,000 and interest; he said, “ I admit I owe you §3,000 and interest; I have paid you in part, which is between $200 and $300 of the interest, and I will pay you $3,000 and the interest, which amounts to about $1,500.” She testified that this conversation referred to the Brook street property. She furthér testified that she heard a like conversation between them in 1897, and then he promised to pay the $3,000 and interest on the next first of April. That in 1898 she heard her mother say to Shaffer, “ When are you going to pay me the $3,000 you owe on the Brook street property and the interest ? ” He said, “ I know I owe you the $3,000 and the interest, which I will pay $2,000 of it in June and the balance, which was $1,680, the first of January.”

Thomas Widdowfield testified that in July, 1897, Shaffer told him to tell Mrs. Henry the next time he wrote to her, that he, Shaffer, would pay her the $3,000 he owed her on the Brook street property with the interest in October. Taking these two statements as credible, which the jury must have done, Shaffer distinctly specified and acknowledged the old debt on the purchase money of the Brook street property and promised to pay it at a definite time. The letters of Shaffer to plaintiff, fourteen in number, run in date from November 6, 1896 to March 17, 1897; while not distinct acknowledgments of any particular debt or specific promises to pay a particular debt, all accord in character with the specific promises testified to by these witnesses. They were not written instruments for interpretation by the court, but a part of a course of conduct by Shaffer towards plaintiff made up of oral and written promises and asseverations of regard for her, which drew the whole to the jury for their interpretation. From the evidence the jury might find in the words of Palmer v. Gillespie, supra, “ A clear, distinct and unequivocal acknowledgment of a debt; . . . . one with no uncertainty as to the particular debt .... so distinct as to remove hesitation as to the debtor’s meaning.” Besides, from the testimony, they were warranted in finding an absolute promise to pay at a fixed day.

The able argument of appellant’s counsel, that a greater measure of proof is required to toll the running of the statute after it had once become operative, than to raise a new promise before the expiration of the six years, is not without merit. It is a point not raised or discussed, so far as we have discovered in any of the adjudicated cases. For example, if a new promise to pay be made five years after a debt be due, the effect would be to extend the time in which the statute could not be successfully pleaded, six years from the date of the new promise, or eleven years from the date the debt was first demandable. Here, the statute had barred the debt more than four years before the date of the new promise; it might well be argued, that in the first case, the debtor would not hesitate to renew the old promise, for the new would make the debt no more effective for collection than the old, which was still in force ; but in the second case, suit is effectually and forever barred unless the new promise be made; the demand is not enforceable ; it is stale unless freshened by the voluntary act of the debtor. But while this is the case, the law makes no change in the measure of proof between the promise made before the statute has run and the one made afterwards, and it would only disturb the well settled rule were we to make a change now. We can only say that as an argument on evidence, the improbability of a promise made while the debt is still within the statutory period is less than of one made after the claim is completely barred.

After a careful examination of the evidence and the law bearing upon it, we find no error that calls for a reversal; therefore, the judgment is affirmed.