Barnhart v. Barnhart , 1903 Pa. Super. LEXIS 189 ( 1903 )

Opinion by

Oklady, J.,

The court below was requested by the defendants to say to the jury, that under all the evidence and pleadings in the case, the verdict must be for them, which was refused for the reason that the proposition was strictly one of law, arising on the whole case. The genuineness of a receipt and certain other controverted facts were submitted to the jury and a verdict was returned in the plaintiff’s favor. On motion for judgment non obstante veredicto, the testimony was reviewed by the trial judge and held to he too vague, indefinite, and uncertain to warrant the submission of the case to the jury.

The form of the reservation of a question of law has been clearly defined, and in all instances should be made as directed in Supplee v. Herrman, 16 Pa. Superior Ct. 45, Witman v. Smeltzer, 16 Pa. Superior Ct. 285, and Baltzell v. Cook, 19 Pa. Superior Ct. 490. However the appellate court "will look at the substance of the reservation notwithstanding its form : Mayne v. Fidelity & Deposit Co., 198 Pa. 490.

It is true there are certain contradictions in the testimony, but, interpreting them in the most favorable light for the plaintiff, the testimony, taken as a whole, lacks directness and certainty as applied to the particular promise which had to he established by the plaintiff. The case was a very stale one. The debt sought to be recovered was demandable in 1869. This action was the first legal demand ever made, although it was brought more than twenty-nine years after the right of action accrued.

The presumption of payment was 'invoked and the plaintiff assumed the burden of overcoming it. In order to do this after so long a lapse of time, there should be little doubt as to the character of the proof, and a certainty as to facts testified to in identifying the indebtedness and establishing the promise. Under all of the testimony, the court would have been justified in affirming the first point submitted by the defendants, but, acting with special caution, the learned trial judge preferred a more careful and critical examination of the testimony than it was possible to make during the hurry of the trial.

We concur in his conclusion, namely, that the evidence was insufficient to overcome the legal presumption of payment. The assignments of error are overruled and the judgment is affirmed.