Keener v. Zartman

• Decision Date: 05 October 1891
• Docket Number: 97
• Citation: 22 A. 889,144 Pa. 179
• Parties: M. KEENER, ADMR., v. D. ZARTMAN, ADMR
• Court: Pennsylvania Supreme Court

22 A. 889

144 Pa. 179

M. KEENER, ADMR., v. D. ZARTMAN, ADMR

No. 97

Supreme Court of Pennsylvania

October 5, 1891

Argued May 19, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LANCASTER COUNTY.

No. 97 July Term 1890, Sup. Ct.; court below, No. 58 June Term 1887 C.P.

On June 7, 1887, Monroe Keener, administrator of the estate of Emanuel Keener, deceased, brought assumpsit against David Zartman, administrator of the estate of David Zartman deceased. The plaintiff's statement of claim was not printed in the paper-books. The defendant pleaded non-assumpsit, non-assumpsit infra sex annos, payment, and set-off.

At the trial, on April 30, 1890, the plaintiff called Jacob S Keener, to prove books of original entry. On his voir dire, the witness testified that he was a son of Emanuel Keener, the plaintiff's intestate. Objection was made to the competency of the witness.

By the court: Objection overruled, offer admitted; exception.

The witness testified that certain accounts in a book produced were in his father's handwriting.

John D. Matthews, called for the plaintiff, testified that in 1880, David Zartman, now deceased, called upon him with reference to conveying his farms to his sons:

"Q. Now state what conversation took place between you and the old man." Objected to.

By the court: Question allowed; exception. You may state, if you can do it, that you will follow it up by proving an admission and promise to pay within six years.

The plaintiff's counsel stated that he proposed to follow by proving an admission and promise to pay within six years from the bringing of the suit. The defendant's counsel objected to the proof of any conversation that occurred with his intestate more than six years prior to the time suit was brought.

The offer being admitted, the witness testified, in substance, that in the year 1880 David Zartman called upon the witness, who was a justice of the peace, to see whether he could convey a farm to each of his sons; "he had four farms, he said; I told him I thought he could do so, provided he had no debts; he would have to pay his debts, what he had."

Mr. Steinmetz: I object to anything that the witness told Mr. Keener [Zartman] at that time.

By the court: Objection overruled; offer admitted; exception.

"A. He said that I knew all the debts that he had; he owed me a few hundred dollars, and Lewis Fetter a few hundred dollars; and he owed Manny Keener for work on the farm in the neighborhood of $300; that was the conversation we had." The witness testified, further, that the conveyances were made in March, 1880, and that Zartman paid Fetter in his presence; that Zartman also met Keener at witness's office: "They admitted then that the debt was in the neighborhood of $300. How much it was they couldn't say unless they had the books, and they hadn't the books then; but they agreed that the deeds should be given, and Zartman would settle with Keener and satisfy the debt some day."

John Pannebecker, called for the plaintiff, testified that in the spring of 1882 he was working as a hired man for Emanuel Keener, then living on a farm of David Zartman, and heard a talk between Keener and Zartman about a debt:

"Emanuel Keener asked him to pay him for his debt about hauling lumber and boarding the men, and for the building of the barn and the house, and Mr. Zartman said that he knew he owed him, and that he will see that he will pay it; that the boys, Davy and Pete, had got the best farms, and they must pay it."

By the court: "You stated first that he said he would pay it. Now you say he said that his sons had the two farms, and he would make them pay it."

"Q. Was anything said about how much the debt was? A. Mr. Keener said it was about $300."

By the court: "Did Mr. Zartman admit that? A. Yes, sir."

"Q. Where was this talk had? A. Between the house and the barn, about ten steps from either place. Q. Out in the yard? A. Yes, sir. Q. And this was in 1882? A. Yes, sir. Q. That was the year you were living there? A. Yes, sir. Q. Who else was present when this conversation took place? A. Monroe Keener and his sister, and, I guess, the old woman; I don't know that for sure, Mr. Keener's wife. Q. Did you hear any other conversation about this between them? A. No. Q. Did old Mr. Zartman ask Mr. Keener how much the debt was? A. Yes, sir. Q. And what did Keener say? A. Well, about $300 he said. Q. What did the old man then say? A. The old man then said that he knows that he owes him that, and he wants to see that he will get his pay from the two boys; David and Peter have got the best farms, and they must pay it."

After other testimony, the plaintiff gave the accounts proved in evidence. These accounts were not shown in the testimony as printed, but it was stated in the appellant's paperbook that the claim was for boarding furnished, and wages paid to carpenters and masons who built a house on one of the Zartman farms in 1864 and repaired a barn in 1873; and that David Zartman died on November 27, 1885, and Emanuel Keener on March 31, 1887.

In the defendant's case, Peter Zartman, a son of David Zartman, deceased, was called and, under objection by the plaintiff, testified that on April 30, 1890, he had executed to David Zartman the following assignment:

"Know all men by these presents that I, Peter Zartman, of Lincoln, Lancaster county, Pa., for value received have bargained, sold, assigned, transferred and set over unto David Zartman, all my right, title, interest and demand in, to or out of the estate of David Zartman, late of Elizabeth township, Lancaster county, Pa., deceased, giving him authority to collect and receive the same unto himself, be the same in real, personal or mixed estate of any kind whatsoever of said David Zartman, deceased, to which I now have claim, right, title or interest.

"Witness my hand and seal this 30th day of April, A.D. 1890.

PETER ZARTMAN, [SEAL.]"

The defendant then offered the assignment in evidence. Objected to.

By the court: Offer refused; exception.

The defendant then offered to prove by the witness an entry on a blank page of an old copy-book, containing no other accounts, "as an original entry kept in a book of David Zartman, now deceased." The entry was as follows:

"Brickerville, Lancaster county, Pa., April 2, 1880: a statement made according to the farming of Emanuel Keener, on the farm then belonging to David Zartman, deceased.

148 bu. of wheat at $1.10 per bu.

$ 162.80

115 bu. of corn at 55c. per bu.

118.25

15 bu. of rye at 75c. per bu.

11.62

149 bu. of oats at 49c. per bu.

58.11

$ 350.78

"The above is a correct statement with the last year's farming of Emanuel Keener on David Zartman's farm, and kept the $350.78 as a claim against the said David Zartman.

"PETER ZARTMAN, [SEAL.] DAVID ZARTMAN."

Objected to.

By the court: The offer is not an original entry; and witness holds a deed for a farm from his father executed in March, 1880, for a merely nominal sum, a gift from his father. We therefore overrule the offer; exception.

By Mr. Steinmetz: It is proposed further to prove by this witness that he settled with Emanuel Keener for his father a few days before April 2, 1880, in which settlement Emanuel Keener gave him a report or account of 148 bushels of wheat at $1.10 per bushel, 115 bushels of corn at 55 cents per bushel, 15 bushels of rye at 75 cents per bushel, 149 bushels of oats at 49 cents per bushel, as his father's share of the year's crops on the farm for the years immediately preceding April 1, 1880, which amount Emanuel Keener owed David Zartman and which he kept against the claim that David Zartman owed him; that his father, David Zartman, had this made into an original entry and signed it, as appears under date of April 2, 1880, in the book produced, a copy of which account has already been offered to the court. Objected to.

By the court: Objection sustained, offer refused on account of the incompetency of the witness; exception.

The case being closed on the evidence, the court, PATTERSON, J.. charged the jury in part as follows:

Now, it is true that when a claim commences to run, if six years has run from that time before the suit is brought, it cannot be recovered, unless the party owing the debt revives it by a promise to pay. If the parties meet and have a conversation about a debt which is owing, and the original debtor, -- here David Zartman, -- within the six years promises to pay it, it revives it for another six years, and it can be recovered. Now, it is true, as has been argued before you, that that promise to pay must be made to the creditor, or to an authorized agent of the creditor. [In two instances, however, under the testimony, you will find that the promise by David Zartman in his lifetime was made to the actual creditor, and therefore we need not go further into that subject.] . . . .

Now what is the testimony in regard to the promise to pay, to take this claim out of the operation of the statute of limitations? Because, you see that some of it was contracted for in 1864, and more than six years has run from that time to the time of bringing the suit; and therefore, it would be cut out by the statute of limitations. The testimony must satisfy you that David Zartman, the defendant, did promise to pay it after that six years was up. [The first witness is John D. Matthews, Esq., a gentleman who has been a justice of the peace, and who knows something about the law in that kind of matters, of course. Now, his testimony is that the defendant, David Zartman, in the course of a conversation between David Zartman and Emanuel Keener in 1880, did reply, after an admission that the debt was owing, that he would pay it; therefore, you must take all his testimony together. In...