Lowrey v. Robinson
Citation | 141 Pa. 189,21 A. 513 |
Decision Date | 30 March 1891 |
Docket Number | 180 |
Parties | C. S. LOWREY v. B. S. ROBINSON, ADMR |
Court | United States State Supreme Court of Pennsylvania |
Argued February 24, 1891
APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY.
No. 180 July Term 1890, Sup. Ct.; court below, No. 571 June Term 1887, C.P.
On June 9, 1887, an appeal by the plaintiff was entered from the judgment of a justice of the peace in an action of assumpsit by C. S. Lowrey against B. S. Robinson, administrator of C S. Robinson, deceased, to recover the sum of $40, alleged to have been loaned by the plaintiff to the defendant's decedent some time in the year 1875. On February 18th, the defendant pleaded non-assumpsit, and the statute of limitations.
At the trial on December 6, 1889, William Slocum, called for plaintiff, testified that he had seen the plaintiff give money to the deceased "lots of times;" that in the winter of 1875 he let him have twenty dollars, but he heard no part of the conversation at the time:
At the close of his cross-examination of the witness, the defendant moved that the last portion of the witness's testimony with reference to his conversation with Mr. Robinson, be stricken out, for the reason that, if an acknowledgment at all, it was not an acknowledgment consistent with a promise to pay.
By the court: Motion refused.
Cyrus Barrowcliff, called for plaintiff, testified that in the winter of 1883 or 1884, he was present when Lowrey asked Robinson for a bill that he owed him; it seemed he had two bills: George Stansbury testified that, about fifteen years before, he heard Lowrey and Robinson talk "in regard to their bills of indebtedness," and Robinson gave Lowrey a check for some bill that he owed him. Whitney Chamberlain testified that he had a conversation with Robinson in 1883:
At the end of a cross-examination of this witness, the defendant moved "that the testimony as to the acknowledgment of Mr. Robinson to pay this debt be stricken out."
By the court: Motion refused.
The plaintiff then and last called Alfred Townsend, who testified that in Robinson's lifetime the witness was sent to him by Mr. Lowrey:
The plaintiff then rested, when the defendant moved for a judgment of nonsuit, for the reasons that: (1) The original indebtedness had not been sufficiently established; (2) the acknowledgments proved had not been shown to relate to the same indebtedness; (3) most of them were not consistent with a promise to pay, and the indebtedness was not sufficiently identified; (4) except in a single instance, the promises were not to the plaintiff or to his known agent.
By the court: Motion refused; exception.
The case then closing on the testimony, the court, SITTSER, P.J., 44th district, specially presiding, charged the jury:
The parties in interest of course are incompetent to testify as to transactions occurring in the lifetime of C. S. Robinson, who is now dead, and the plaintiff has attempted by the testimony of various witnesses to establish the fact that some time C. S. Robinson borrowed some money of the plaintiff.
The first witness called upon that subject was William Slocum, and you heard his testimony. He testifies he saw the plaintiff and C. S. Robinson together; that he saw Mr. Lowrey hand some money to Mr. Robinson. His testimony in chief would seem to indicate that the money was then borrowed by Robinson of Lowrey. On cross-examination, you recollect what he said of the conversation between the parties; he did not hear it, but heard Lowrey say it was borrowed money. The other witnesses were called, Cyrus Barrowcliff, George Stansbury and Whitney Chamberlain, not in the view of proving previous indebtedness, but, as I understand, a promise to pay an indebtedness or an acknowledgment of it. There is nothing in the testimony of these witnesses that would go to show an unequivocal acknowledgment of the debt, or a promise to pay it, that would take it out of the statute of limitations.
You heard the testimony of this witness. You are the judges of his credibility; and, if the testimony satisfies you that there was at this time an admission that he owed the plaintiff forty dollars of borrowed money, and that he promised to pay it, your verdict should be for the plaintiff. If not, then your verdict should be for the defendant. If you find for the plaintiff, he will be entitled to interest from the time the debt was due.
The jury returned a verdict for the plaintiff for $52.80. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, specifying that the court erred:
1, 2. In refusing defendant's motions to strike out.
3. In the portion of the charge embraced in []
4. In submitting the case to the jury upon the evidence.
5. In refusing the defendant's motion for nonsuit.
Judgment reversed, and a venire facias de novo awarded.
Mr. H. M. Hannah, for the appellant.
As to an acknowledgment of an indebtedness, counsel cited: Palmer v. Gillespie, 95 Pa. 344; Wesner v. Stein, 97 Pa. 326; Landis v. Roth, 109 Pa. 621; Burr v. Burr, 26 Pa. 284; McKinney v. Snyder, 78 Pa. 497. That it must be made to the creditor, or his known agent: Gillingham v. Gillingham, 17 Pa. 302; Kyle v. Wells, 17 Pa. 286; Wells v. Pyle, 1 Phila. 21; Wesner v. Stein, supra; Chandler v. Glover, 32 Pa. 509; McKinney v. Snyder, supra; Spangler v. Spangler, 122 Pa. 359 As to the necessary identification of the debt: Suter v. Sheeler, 22 Pa. 310; Landis v. Roth, supra; Shitler v. Bremer, 23 Pa. 413; Palmer v. Gillespie, supra; Wesner v. Stein, supra; Chapman's App., 122 Pa. 331; Kensington Bank v. Patton, 14 Pa. 479; Bell v. Morrison, 1 Pet. 351; Lawson v. McCartney, 104 Pa. 356. As to the vague and indefinite character of the promise: Laforge v. Jayne, 9 Pa. 410; Chandler v. Glover, supra; Bell v. Morrison, supra; Love v. Hough, 2 Phila. 350; Storm v. White, 6 Phila. 531. That there was no sufficient proof of a pre-existing indebtedness: Best on Presumptions, 176; Flemming v. McClain, 13 Pa. 177; Masser v. Bowen, 29 Pa. 128.
Mr. Henry A. Knapp, for the appellee.
The testimony of Slocum and Chamberlain being given without objection, the proper course was to request the court to instruct the jury to disregard it: Robinson v Snyder, 25 Pa. 203; Ashton v. Sproule, 35 Pa. 492; Oswald v. Kennedy, 48 Pa. 9; Yeager v. Weaver, 64 Pa. 425; Montgomery v. Cunningham, 104 Pa. 349. The...
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