Wesner v. Stein & Greenawalt

The opinion of the court was delivered by

Mercur, J.,

May 2d 1881.

This action was on a promissory note. Suit was commenced more than six years after the note became due. The plaintiff relied on acts and acknowledgments of the defendant to avoid the bar of the Statute of Limitations. The court charged that nothing less than a olear and explicit promise to pay was sufficient, that its terms must ’be unequivocal and determinate, and the promise must have been made by the defendant himself.

It is settled that the acknowledgment or admission must be a clear and unambiguous recognition of an existing debt, and so distinct and expressive as to preclude hesitation as to the debtor’s meaning, and as to the particular debt to which it applies, and must be consistent with a promise to pay ; but it is not necessary that there be an express promise to pay in order to avoid the bar of the statute. The debt is not destroyed by the Statute of Limitations, but the right of action or remedy is lost. When that is restored, the declaration is still on the original contract, and not on the acknowledgment as a new promise; such acknowledgment is but a. waiver of the statutory defence: Suter v. Sheeler, 10 Harris 310. Part payment of a debt within six years before suit brought is sufficient from which to infer a promise to pay, but the payment must be clearly proved: Burr v. Burr, 2 Casey 284; Yaw v. Kerr, 11 Wright 333; Patton’s Executors v. Hassinger, 19 P. F. Smith 311. It was said by the present chief justice, in Barclay’s Appeal, 14 P. F. Smith 69, there can be no more unequivocal acknowledgment of a present existing debt than a payment on account of it, and, according to all the authorities, this is all that is required to take a case out of the Statute of Limitations.

The original indebtedness must be established, then a clear, distinct and unequivocal acknowledgment of the existence of the debt, made within six years before the commencement of the suit, is sufficient to remove the bar of the statute.: Watson’s Executors v. Stem, 26 P. F. Smith 121. In the carefully considered case of Palmer v. Gillespie, 9 W. N. C. 535, decided at Pittsburgh last fall, we reviewed the authorities relating to an express promise, and held it was not necessary if the other essential ingredients are sufficiently proved.. The acknowledgment must be made to the creditor or his known agent, and by the debtor himself, or by some one authorized to act for him. The second and fifth assignments are sustained.

The plaintiff relies on acts and declarations of the defendant and in his presence, all of which transpired within six months before suit brought. The note in suit was on its face joint and several, but in fact, as between the signers thereof, the defendant was surety. He had also signed one other note with Stein in like manner to Jonas Wesner; Stein, the principal debtor, became embarrassed. A meeting was appointed for him and certain of his creditors, to be held at the office of a justice, for the purpose of giving some 'security to his creditors. The defendant was ill and unable to attend. His son, Amos S., had a claim against Stein, and was going to the meeting to look after it. The defendant testified, “I told my son that he should ask for a judgment to secure me, in case I should have to pay the notes on which I was bail.” The son testified his father said to him “that I should take a judgment for him.” Again, “my father said the Wesners won’t take a judgment, and you would (had) better take a judgment for the bail also.” lie further testified that he attended the meeting in company with several other creditors; that he took for his father of Stein a judgment of $1511.10, which was made up by the claim of his father, and the two claims on which his father was bail. Afterwards, on the same day, he informed his father that he had “taken a judgment, and — the bail; and his father said yes, or that it was all right.” This and other judgment obligations given at the same time were left with the justice, at whose office they were executed, under an agreement that they should all bo entered at the same time, and they were so entered of record.

As evidence of further recognition of the debt, a payment was made on the note equal to the interest due, and indorsed thereon on the 2d April 1879. It was paid at the house of the defendant and in his presence, to the agent of the plaintiif, who had the note with him, and presented it. The defendant was afflicted with paralysis, and his wife handed the money to the agent. The latter swears, at the request of either the defendant or his wife, he there endorsed the payment. The contention in regard to this payment is, whether it was made by the defendant, or whether it was with money left by Stein with the wife and she merely handed it over for him. If it was paid by the husband’s directions, it was evidence for the jury whether it was sufficient recognition of an existing indebtedness of his to create the presumption of a promise to pay. It was therefore error in the court to say to the jury, as in the tenth assignment, that if the son was not authorized to bind the father to the payment of the note “ that is the end of this suit.”

If this payment was not made by the directions of the defendant, but in his presence and hearing, without anything on his part indicating that he did not participate in it, the transaction, as well as his former directions to his son to take the judgment to secure him, were evidence to be submitted to the jury under proper instructions.

We discover no error in the first, sixth and thirteenth assignments. In so far as the remaining assignments are in conflict with this opinion, they are sustained.

Judgment reversed, and a venire facias de novo awarded.