Marshall v. Brick , 1901 Pa. Super. LEXIS 105 ( 1901 )

Opinion by

Orlady, J.,

T. S. Brick, this defendant, made two notes of $200 each at thirty days, one dated October 1,1892, to the order of Joseph N. Marshall, and the other October 29, 1892, to the order of Davis Pennock, both of which were indorsed by Marshall and Pennock, discounted by the Farmers’ National Bank of West Chester, and the proceeds thereof paid to Davis Pennock, Marshall being an accommodation indorser on both notes.

The notes were not paid at maturity and were duly protested. Soon thereafter the bank, which at the time was the holder of another note made by Brick for $500, took from him (Brick) a note for $900, to be held as a collateral for his note of $500 and the two $200 notes.

After giving this note, discounts and payments on account of its principal were paid by Brick to the bank for several years, and he directed that the reductions should be appropriated to his $500 note. Suit was brought against Marshall, as indorser on the two $200 notes, and he was obliged to pay them. He then brought this suit, on October 2, 1899, against Brick, the maker, who pleaded the statute of limitations. A nonsuit was entered by the court and the plaintiff urges on this appeal that, inasmuch as the two notes represented in thid action were included in the $900 collateral note, and that interest on their aggregate was regularly paid by Brick to the bank, this was such an acknowledgment as would bar the running of the statute.

There is no question but that the two $200 notes formed a constituent part of the $900 note, the latter being a consolidation of the three notes on each of which Brick was originally liable as maker, and as such debtor he had the right to direct the application of the payments made by him. Brick had no defense as against the bank, and the payment of interest on that indebtedness was not a recognition or admission of liability to Marshall who had no control over the collateral note. It was not given at the time the liability of Marshall was created. The meritorious cause of action was on the contract of indorsement of the notes payable in 1892, but this suit was not brought until nearly seven years had passed.

The payments of discounts and on account of the principal were made by Brick to the bank as his creditor and not as the agent of Marshall; and under authority of McKinney v. Snyder, 78 Pa. 497, and Spangler v. Spangler, 122 Pa. 358, they cannot be, held to be more than a “ mere declaration of intention which the promisor may change at pleasure,” and as such were insufficient to toll the statute.

To entitle the plaintiff to recover the acknowledgment and promise to pay must be clear, distinct and unequivocal, and be plainly referable to the debt upon which the action is based: Palmer v. Gillespie, 95 Pa. 340; Keener v. Zartman, 144 Pa. 188; Beal & Simons v. Adams Express Co., 13 Pa. Superior Ct. 145 ; Foringer v. Sisson, 14 Pa. Superior Ct. 266.

There was no evidence to connect the payments made by Brick with the notes on which this suit is founded, and the plaintiff’s proof was that the payments made were, by Brick’s direction, to be appropriated to the $500 note.

The judgment is affirmed.