Lawson v. McCartney

• Decision Date: 07 January 1884
• Citation: 104 Pa. 356
• Parties: Lawson <I>versus</I> McCartney.
• Court: Pennsylvania Supreme Court

104 Pa. 356

Lawson versus McCartney.

Supreme Court of Pennsylvania.

October 23, 1883.

January 7, 1884.

October 23rd 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN and CLARK, JJ., absent

ERROR to the Court of Common Pleas No. 2 of Allegheny county: Of October Term 1883, No. 41.

Duff (with whom was Alcorn), for plaintiff in error.—The defendant refused to pay, refused to promise to pay in the future and merely admitted that the debt was owing. An admission to take the case out of the statute must be unqualified: Wesner v. Stein, 97 Pa. St. 322; Palmer v. Gillespie, 95 Pa. St. 340. The recognition of the debt must be consistent with a promise to pay; here it was accompanied by a refusal to pay and a refusal to promise to pay: Patton v. Hassinger, 69 Pa. St. 311; Watson v. Stem, 76 Pa. St. 121; Gleim v. Rise, 6 Watts 44. At least the court erred in not submitting to the jury the question whether or not there was a sufficient promise to take the case out of the statute.

A. M. Brown (with whom was John S. Lambie), for defendant in error.—An acknowledgment is sufficient if it admit the debt to be then in full force: Senseman v. Hershman, 82 Pa. St. 83; Palmer v. Gillespie, 95 Pa. St. 340; Wesner v. Stein, 97 Pa. St. 322. The law will here imply the promise without it having been actually made: Johns v. Lantz, 63 Pa. St. 324; Watson v. Stem, 76 Pa. St. 121; Senseman v. Hershman, supra.

The opinion of the court was delivered January 7th 1884 by Chief Justice MERCUR.

This suit was brought on a note, more than six years after it became due. The right to recover therefore rested on the ability of the plaintiff below to establish an express promise within the six years or such an acknowledgment as is clearly consistent with a promise to pay.

The acknowledgment necessary to remove the bar of the statute was fully considered in the recent cases of Palmer v. Gillespie, 14 Norris 340; and Wesner v. Stein & Greenawalt, 1 Out. 322. It must be clear, distinct and unequivocal not only as to the existence of a debt; but of the particular debt to which it is sought to be applied.

There is no merit in the first or second specifications of error. They were not urged on the argument. The third specification is to the court having instructed the jury to find in favor of the plaintiff below for the amount of his claim. The only contention therefore now is whether the case should have been taken from the jury.

The parties were the only witnesses. Each testified in his own behalf, and to two conversations. The first was on the 26th of June 1876, the other sometime in July following. McCartney testified that the first was just before he went to Kansas, that Lawson promised to pay the note when witness returned; that he was absent about four weeks, and then saw Lawson, who said he would pay but could not do it then. On cross-examination, he testified that in the talk about going to Kansas, Lawson said he would have the money ready for him on his return. On the return of witness, he found Lawson had closed his doors, but the latter said "he would pay me, but could not pay me now."

Lawson testified that at "this first conversation in June, he did not promise to pay the debt:" but told him "I wished I could pay him all I owed him." Witness further said, "in the first conversation, he wanted me to promise to pay him. He may have thought I would, I said I was sorry I could not pay him all I owed him, I admitted I owed it." Lawson filed a petition in...