Shaffer v. Shaffer , 1861 Pa. LEXIS 329 ( 1861 )

The opinion of the court was delivered,

by Strong, J.

The question presented by this record, is whether the due-bill of Abraham Shaffer, dated May 1st 1857, and the endorsement of the same date on the note in suit, made in the handwriting of the plaintiff, either separately or together, take the case out of the Statute of Limitations. It is admitted that payment of interest on the note in suit, made May 1st 1857, would be an answer to the defendant’s plea, because such an act would have been inconsistent with any other supposition than that the defendant then acknowledged his continued liability. The question in debate therefore may be stated thus: — Do the due-bill and the endorsement furnish any evidence, that should be submitted to a jury, from which they might find that the defendant paid interest on the note in suit on the first day of May 1857 ? It is clear that the endorsement alone was not proper to go to the jury. It was in the handwriting of the plaintiff, and there was no proof that it was made at the time of its date, unless such proof was furnished by the due-bill. Endorsements ’ made by the pfoinissee, before the statute has closed upon the right to maintain suit, are undoubtedly evidence of corresponding .payments-, to remove the bar of the statute, in this state, though no longer in England, but it has always been held that they are not evidence at all, unless proved to have been made while the statute was running: Addams v. Seitzinger, 1 W. & S. 243; Cremer’s Estate, 5 W. & S. 331. They are evidence made by a plaintiff for himself, and upon general principles would not be receivable at all. The exception is admitted because endorsements by the plaintiff are declarations against his own interest, when made within six years from the promise. When made afterwards, the reason for their admission entirely fails. It is equally clear that the due-bill of itself was insufficient to prove that interest was paid on the note, at any time, much less on the 1st of May 1857. The due-bill acknowledges the defendant’s indebtedness to the plaintiff in $17.40, “ on settlement of a note as interest.” Now construing this as an admission of indebtedness for interest on a note (the most favourable construction for the plaintiff), it still does not identify the note. It does not point plainly and unmistakeably to that in suit. It may have been interest on a different note. It will not ansAver to say that this was a question for the jury. Not so. The modern authorities are uniform to the contrary. The statute itself does not contemplate any removal of the bar by an acknowledgment, or even a new promise. And although such an effect has been alloAYed to them by the courts, yet it is now everywhere held, that “ Avhere the bar of the statute is sought to be removed by a new promise, the promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be in its terms unequivocal and determinate:” 2 Greenleaf’s Ev. § 440. Mr. Greenleaf has collected a considerable number of eases, and he deduces from them the doctrine, that if there be circumstances accompanying an acknoAvledgment, “ which repel the presumption of a promise or intention to pay, or if the expressions be equivocal, vague, and indeterminate, leading to no certain conclusion, but at best to possible inferences Ayhich may affect different minds in different Avays, it has been held that they ought not to go to a jury as evidence of a neAV promise to revive the cause of action;” § 440. This is assuredly settled in this state. Thus in Morgan v. Walton, 4 Barr 321, Which Avas assumpsit for a book account, the proof Avas that the defendant had said to the son of the plaintiff, “I OAYe your father, but tell your father I cannot pay him this fall, nor before next spring; but next spring I intend to settle with your father, and pay him Avhat I OAve him. Either pay him what I OAYe him, or his account.” The witness was not sure Avhich. This was held insufficient, because it left an uncertainty whether the debtor referred to the part of the account not barred by the statute, or to the AYhole together. In Suter v. Sheeler, 11 Harris 308, it Avas held that if the evidence proves no recognition of an amount, or of the instrument of indebtedness, or other circumstances of identification, the debt in suit cannot be regarded as revived. A similar doctrine was held in Shitler v. Bremer, 11 Harris 413. In Burr v. Burr, 2 Casey 284, the evidence was that the plaintiff, who sued on a note, had said to the defendant, “ Israel, can thee let me have a little money on that note which I hold of thine ?” To which he replied, “ How much would thee .like, mother?” Upon her answering, “four or five dollars,” he gave her seven, saying, “Is that sufficient?” She answered, “It is for the present.” This was ruled insufficient, because it was not proved unequivocally that the payment was made on the note in suit. This court held, therefore, that the jury were not at liberty to find that it ivas. The evidence was more direct and pointed in that case than it is in the present. These rulings abundantly prove that the due-bill given in evidence by the plain•tiff, could not avail to take his case out of the statute. It did :not prove that a payment was made on the note in suit on the 1st of May 1857.

And if it did not prove a payment on the note then, how could it prove that the endorsement by the plaintiff was then made ? The endorsement is important only as evidence of a payment, •'for it is a payment and not an endorsement which constitutes an acknowledgment. The defendant’s declaration made in his due-bill, is entirely consistent with the endorsement having been made even after suit was brought. When a plaintiff offers his own declarations as evidence to rebut the plea of the statute, he must show that they were made when it was against his interest .to make them. He must not leave this to inference, or in doubt.

We think, therefore, the court erred in entering judgment upon the reserved points for the plaintiff.

The judgment is reversed, and judgment is entered upon the reserved points for the defendant.