Kensington Bank v. Patton

• Decision Date: 01 January 1853
• Citation: 14 Pa. 479
• Parties: Kensington Bank versus Patton.
• Court: Pennsylvania Supreme Court

14 Pa. 479

Kensington Bank versus Patton.

Supreme Court of Pennsylvania.

ERROR to the District Court of Philadelphia.

The case was argued by J. Johnston, for plaintiff in error, with whom was St. Geo. T. Campbell.—It was contended that the evidence was sufficient that the defendant acknowledged and promised to pay the debt: 9 Barr 258; 3 Ser. & R. 211; 7 id. 116; 2 Gale & Davison, 593 (in 1842); 15 Vermont 560, Chapin v. Warden (in 1843); 4 Denio, Stilwell v. Cooper; 8 Wend. 600; 3 Whar. 81; Best on Ev. 40; 6 Miss. 21; R.M. Charlton's Rep. 8; 13 E. C.L. 85; 16 Vermont 193; id. 297.

Hood, for defendant.—1 Brown's Rep. 123, Bell v. McCall; 9 Con. Rep. 496; 4 Barr 322-3; 9 Watts 380; 10 id. 172; 6 id. 220; 15 Maine Rep. 360, Oakes v. Mitchell. In 1 Pet. 351, it was

held that plaintiff must show himself entitled to recover on the terms of the new promise. Also cited 6 B. & C. 549; 14 Mees. & Wels. 741, Hart v. Prendergast (1845). The onus lies on plaintiff. 4 C. & P. 173; 5 J.J. Marshall, 255; Joynes on Stat. of Lim. 98.

The opinion of the court was delivered by ROGERS, J.

Was this a case to be tested exclusively by the earlier decisions, sufficient appears in the evidence to take it out of the operation of the act of limitations. This is conceded; but the later cases have adopted more stringent rules, and have nearly restored the construction of the act to what it ought originally to have been. Being a statute of repose, it deserved encouragement, a benign interpretation, instead of rebuke, censure, and discountenance, carried to such an extent as almost to amount to a repeal of the act itself. Nor do I think that the law will be put upon a proper footing, until some legislative action is had, some enactment, similar to the British statute, is introduced into our system, requiring the acknowledgment and promise to pay, to be in writing. The inquiry now is, how does the case stand on the modern decisions, some of which only is it my intention to notice. In Bell v. Morrison, Peters 351, it was held, that plaintiff must show himself entitled to recover on the terms of the new promise; and if any conditions were annexed, they ought to be shown to have been performed. The acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt, which the party is liable and willing to pay. Expressions equivocal, vague, and indeterminate, will not suffice. The statute was designed to guard against persons being entrapped in careless conversations and betrayed by perjuries. The promise to pay must not be vague, shadowy, and uncertain; it must be plain, unambiguous, and express, and such as to preclude hesitation and doubt: Allison v. James, 9 Watts 380; Gilkyson v. Larue, 6 W. & Ser. 213; Morgan v. Walton, 4 Barr 322; Berghaus v. Calhoun, 6 Watts 219. In Morgan v. Walton, the words were, I owe your father, but tell him, I cannot pay him this fall, not before next spring; but next spring, I intend to settle with your father and pay him what I owe him, or pay him his account. Held, not to take the case out of the act. Although there was an acknowledgment of the debt, yet it was qualified by what took place at the time.

The words on which plaintiff relies are, that defendant said to an agent of theirs, that he would come up to the bank, in the course of a few days, and make some arrangement to pay the note. The witness, who was a clerk in the bank, says he went to Patton, the defendant, and said there was a note of his for $100, which had been lying unpaid, and that he had been sent to have some arrangement made respecting the payment of it. The defendant said he would call up at the bank, in the course of a few days, and make some arrangement respecting the payment of it. He said he might pay it, or could pay it, in the course of a year. Something was said by witness, of taking five dollars at a time. Witness told him that the bank would take it in any sums he chose. Does not remember whether defendant declined that, or not. That this may be considered as the acknowledgment of a debt, may be conceded; but is it consistent with a promise to pay? The witness says, he would call up and make some arrangement to pay the debt. In Oakes v. Mitchell, 15 Maine Rep. 360, the words were, an arrangement will soon be made to pay the note. I calculate to pay it, and I always calculated to pay it. This was held not sufficient to take the case out of the...