Appeal of Keyser , 124 Pa. 80 ( 1889 )

Opinion,

Me. Chief Justice Paxson :

In the court below the appellant presented a claim of three thousand dollars against the estate of Henry Seybert, deceased, for literary services performed by him for the decedent in his lifetime, in preparing a work entitled, The Chronicles of Independence Hall. That the work was performed, and that it was worth the sum demanded was not seriously controverted. The difficulty in the case lies deeper.

The appellant sought to recover as upon a quantum meruit, by showing that he was engaged by the testator to perform the service and the value of it. The court below, however, has distinctly found that the relation of the parties was not that of employer and employee; that there was no contract by which the decedent was to pay for and become the proprietor of the work, but that on the contrary, the appellant's compensation was to be derived solely from the profits arising from sales thereof after publication. We will not review the evidence in detail by which this result was reached. We must accept the findings of the court upon questions of fact, as we have repeatedly said, unless error is clearly made to appear. This has not been done, nor do I see how it could have been in view of appellant’s statement of the contract as contained in his letter to Mr. Seybert of January 17,1879. The letter was as follows:

“Mr. Henry Seybert :

“ Dear Sir: Under our agreement, I was to furnish the MS. of the work you desired to be prepared on Independence Hall, and its clocks and bells, and you were to pay the expense of publication; the profits were to be divided equally after you were first repaid the cost of publication.

“To this agreement I must hold you, unless the work I have done after some months of labor is not such a volume as would meet the approval of the most competent judges. I have agreed with you to submit it to the judgment of Mr. Wallace and Mr. Westcott, or any other gentlemen of like character and reputation. I am still willing to do so, and would be pleased to hear from you at your earliest convenience, if the names of these gentlemen meet your approval.”

This is an entirely different contract from the one set up in the Orphans’ Court, and precludes a recovery upon a quantum meruit. An action would indeed lie upon the contract proved, but its breach would be the refusal of the decedent to publish tire book. A claim for this breach might have been made in the Orphans’ Court, but it was not, nor was there any evidence by which the damages could have been measured.- Speaking for myself, I do not see why a work upon such a subject, written by a gentleman of the appellant’s known literary ability, should not prove of general interest and command a ready sale, if too much prominence is not given to the decedent and his bells.

We might well stop here. There is, however, another difficulty, equally serious, in the way of the appellant. The appellees set up the statute of limitations. Mitch more than six years had elapsed from the completion of the work and the presentation of the claim in the Orphans’ Court. Mr. Seybert flatly repudiated it in 1879. Thus the matter rested until his death in 1883. After that event a demand was made in writing on his executors for the payment of the sum of $3,000 as compensation for writing the book. This was on January 17, 1884. The executors refused to recognize the claim, and offered to accept service of a writ. Nothing further was done until the citation was asked for in 1887, after which the claim was presented to the Orphans’ Court for adjudication. It will thus bo seen that for at least eight years the claim was ripe for suit and was all that time repudiated. The statute commenced to run not later than 1879. It was not stopped by the death of the decedent as all the authorities show. Was it stopped by the demand upon the executors in 1884, a demand not recognized by them and not followed up by any aggressive measure until 1887 ? It is not pretended that a mere demand upon Mr. Seybert in his lifetime would toll the statute. Was a demand upon his executors after his death of any greater effect? If so, it is an anomaly.

It was urged that Yorks’ App., 110 Pa. 69, sustains the contention of the appellant in this respect, and that a mere demand upon the executor tolls the statute. If this be so Yorks’ Appeal needs amendment.

I concede that the language cited by appellant is to be found in the first opinion in Yorks’ Appeal at page 76. But the first opinion is not Yorks’ Appeal, it is only a part; and the least important part of it. In the first we tried to avoid overruling McClintoek’s Appeal, and the line of cases following it. Speaking for myself, I felt averse to reversing the opinion of so eminent a jurist as the late Chief Justice Black. It was this feeling which prevented our going as far in the first decision as we felt the law would justify. Subsequent reflection satisfied us that it was a mistake to temporize, and we applied the knife. We intended to cut this judicial excrescence out of our system of law, and we are not convinced that we did not succeed. The language quoted by the appellant from the first opinion is as much overruled by the second as was McClintoek’s Appeal itself, and the broad principle was distinctly asserted that the statute of limitations may be set up in the Orphans’ Court precisely as in a court of law. Nor can the statute be tolled by anything short of a suit at law or what is its equivalent in the Orphans’ Court. A mere demand upon an executor is not such equivalent and it does not toll the statute. This is as plain as I can make it.

I desire further to say that there was no question in Yorks’ Appeal of the presentation of the claim to the executors. No such presentation had been made. The language quoted in the opinion was stated argumentatively, and was mere dictum, for which I am alone responsible. It was not the point decided in the case.

Subsequent reflection has convinced us that Yorks’ Appeal was well decided. The court as now constituted are united in sustaining it.

Upon either of the grounds indicated the appellant has no case.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.