Grosch v. Trexler

• Decision Date: 16 March 1917
• Docket Number: 235-1916
• Citation: 66 Pa.Super. 485
• Parties: Grosch v. Trexler, Appellant
• Court: Pennsylvania Superior Court

66 Pa.Super. 485

Grosch v. Trexler, Appellant

No. 235-1916

Superior Court of Pennsylvania

March 16, 1917

Argued December 7, 1916

Appeal by defendant, from judgment of C.P. Lehigh Co.-1915, No. 63 on verdict for plaintiff in case of John A. Grosch v. D. D Trexler.

Assumpsit for work and labor. Before Groman, P. J.

At the trial the court admitted under objection and exception a time book offered to corroborate oral testimony as to work and labor done.

The defendant offered in evidence various checks which would have liquidated plaintiff's bill for work and labor. Under objection and exception the plaintiff was permitted to use memorandum slips to refresh his memory in order to show that the checks were not given for the work and labor for which suit was brought, but for the payment of supplies and for other labor than that involved in the suit.

Defendant presented this point:

1. The plaintiff cannot recover for services performed longer than six years prior to the issuing of the writ. Answer. Refused.

Verdict and judgment for plaintiff for $ 386.25. Defendant appealed.

Errors assigned, among others, were rulings on evidence quoting the bill of exceptions and refusal of point as above.

Affirmed.

Jacob Erdman, with him Samuel J. Kistler, for appellant.

Adrian H. Jones, with him George A. Miller, for appellee.

Before Orlady, P. J., Porter, Henderson, Kephart, Trexler and Williams, JJ.

OPINION

KEPHART, J.

Plaintiff sued to recover on a contract for proving coal on a tract of land in which the defendant was interested. The defendant set up the plea of the statute of limitations, which was met by proof that a payment on account of the claim had been made within six years of the time suit was instituted. The major portion of the claim was for services prior to the period of payment, and without the six years, but a payment within six years would toll the running of the statute. There can be no more unequivocal acknowledgment of a present existing debt than payment on account of it, and according to all authorities this is all that is required to take the case out of the statute of limitations: Tyers v. Kuhn, 52 Pa.Super. 24; Barclay's App., 64 Pa. 69.

Oral evidence had been given by the plaintiff and his two sons to sustain their claim. A time book was then offered in evidence to corroborate this testimony. It was shown that the entries therein were made daily at the time the transaction noted took place. The rate of pay and the total amount charged were correctly set forth. Though this book was not what might be technically known in bookkeeping as a book of original entry it did contain, in substantial form, a complete record of...