Gillingham v. Gillingham

• Decision Date: 29 January 1852
• Citation: 17 Pa. 302
• Parties: Gillingham <I>versus</I> Gillingham.
• Court: Pennsylvania Supreme Court

Page 302

17 Pa. 302

Gillingham versus Gillingham.

Supreme Court of Pennsylvania.

January 29, 1852.

THIS case came up from the Nisi Prius.

The case was argued by Todd, for plaintiff in error.—An acknowledgment to affect the party must be to the owner or his agent: 10 Watts 262, Mechanics Bank v. Wilson; 4 Barr 323, Morgan v. Walton.

Brightly, with whom was Mann, for defendant in error.

The opinion of the court was delivered January 29, by COULTER, J.

This case is ruled by Kyle and Wells, decided at this term, the opinion in which case was foreshadowed by dictums in Walton v. Morgan, 4 Barr, and in Christy v. Flemington, 10 Barr 129, and which establishes definitively and distinctly, that a promise, to take the case out of the statute of limitations, must be made to the plaintiff or his agent.

But the alleged promise, which in fact was no promise to the plaintiff or to any one in his behalf, but a mere statement by the defendant to his friend, was too vague and uncertain, even if made to the plaintiff or his agent, to take the case out of the statute. Defendant stated that he had got the money, but that it never belonged to plaintiff, but to another person whom he named, and that he intended to pay it. But it was entirely equivocal to whom he intended to pay it.

Indeed, the whole of his conversation and the whole of the res gesta would seem to indicate that he meant to pay it to the person to whom it really and justly belonged.

Judgment reversed and venire de novo awarded.