Croman v. Stull , 21 W.N.C. 82 ( 1888 )

Opinion,

Mr. Justice Paxson :

This record presents but two questions, viz: (a) whether the promise was made to the proper person, and (&) if so, whether it was sufficiently distinct to take the case out of the statute of limitations.

It is settled law that the promise must be made to the plaintiff or his authorized agent. A promise made to a stranger who has no interest in the transaction does not bind the promising party. Gillingham v. Gillingham, 17 Pa. 302; Kyle v. Wells, 17 Pa. 286; McKinney v. Snyder, 78 Pa. 497. The rule that the promise must be made to the plaintiff or his agent means nothing more, however, than that it must be made to a party in interest. Thus it was held in Keely v. Wright, 5 W. N. 241, that where a promise had been made to the husband, after the death of his wife, but before he had taken out letters of administration upon her estate, the promise was binding upon the party making it. The ground of this decision was that the husband was not a stranger, but was the owner of the note in question as part of his wife’s estate.

In the case in hand the note originally belonged to the estate of David D. Diehl. He died, leaving a will in which he bequeathed his estate to his wife and appointed her the executrix of his will. She filed an inventory, but never filed a settlement of his estate. The note in controversy was never collected, but she received the interest for some time. Mrs. Diehl then died testate, having appointed Reuben S. Stull her executor. The note was included in the inventory of her estate, of which David T. Breiseh, one of, the defendants below, was an appraiser. Subsequently Stull took out letters d. b. n. o. t. a. upon the estate of David D. Diehl and brought this suit to recover the amount due on the note. The promise in question was made before he took out the letters upon David D. Diehl’s estate and while he was the executor of the estate of Mrs. Diehl. Upon this state of facts we have no hesitation in holding that he was such a party in interest as made the promise binding. He was the executor of Sophia Diehl and she was the party in interest. She was the owner of the note, subject to its liability for David D. Diehl’s debts. Her executor cannot therefore be said to be a stranger. Indeed it is difficult to see how a binding promise could have been made to any one else.

Nor are we in any doubt as to the second proposition. The words of the defendant Breisch relied upon to take the case out of the statute are as follows: “ In case they (the other parties to the note) don’t pay it; let me know it, then I will pay it; I don’t want to have any trouble any further.” This is clear and distinct. There was no question about the identity of the note or its amount. The promise was unequivocal to pay if the others did not. The others did not pay and the defendant is liable.

Judgment affirmed.