Harbold's Executors v. Kuntz

• Decision Date: 26 May 1851
• Citation: 16 Pa. 210
• Parties: Harbold's Executors <I>versus</I> Kuntz.
• Court: Pennsylvania Supreme Court

Page 210

16 Pa. 210

Harbold's Executors versus Kuntz.

Supreme Court of Pennsylvania.

May 26, 1851.

ERROR to the Common Pleas of Adams county.

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D. McConaughy and M. McClean, for plaintiffs in error, contended that the testimony of Blake was not sufficient to take the case out of the statute: 6 Watts 219; 10 id. 172-9; 7 W. & Ser. 180; 3 Barr 418; 4 id. 321-4; 1 Jones 365. In this case there is no admission of a clear balance: 1 Peters 351, Bell v. Morrison.

D. M. Smyser and R. J. Fisher, in reply.—The claim was a quantum meruit for an amount unliquidated, not only at the time

of the acknowledgment, but from and during all the time of the continuance of the implied contract between the parties. The acknowledgment went to the entire claim — the whole claim for ten year's services. It acknowledged an indebtedness coextensive with any that ever existed, before the statute began to run. In the very nature of the case, it could name no sum or amount.

But the acknowledgment was accompanied by an express promise to pay. This promise, if the testimony of the witness is true, was as extensive as the acknowledgment, and went, like it, to the full extent of the original demand. There is, it is true, no admission of a clear balance. There could be none, as there never had been any thing between the parties by which the amount of the balance was known to either, but an undertaking to pay whatever the services were worth. If, one day before the statute interposed, the defendant would have been liable to pay the value of the services, to be liquidated by a jury in case of disagreement between the parties, we say that the declaration of Harbold, in 1847, "that he owed Kuntz for his ten years' services; that he had never paid him, and that he could pay him, and would pay him," restored that liability to where the statute found it. Such a declaration, made within six years, with proof of previous service, would have made out a good case for the plaintiff. Why should it not be sufficient to reinstate his case.

The opinion of the court was delivered May 26, by COULTER, J.

In order to take a case out of the statute, the acknowledgment of the debt must be clear and unequivocal, otherwise it is not equivalent to a promise to pay; and it ought to be so distinct in its extent and form as to leave no room for doubt or hesitation: Farley v. Kustenbader, 3 Barr 418; Berghaus v. Calhoun, 6 Watts 220; Magee v. Magee, 10 Watts 172; Hazlebacker v. Reeves, 9 Barr 258; Gilkyson v. Larue, 6 W. & Ser. 213. The extent of the promise, whatever may be said on that subject, is as important as any other of the ingredients. And this is strongly manifested in Farley v. Kustenbader.

The old debt is gone. It is the new promise which is efficacious and creates the liability, and which supports the action. But how can that be, if you don't know its extent, either by positive admission, or by reference to something admitted which makes it certain. The law delights not in shadows and uncertainties, but in distinct proof, on which the mind can rest with...