"It
is contended that there was no evidence to go to the jury
that the defendant acknowledged the debt and promised to pay
it within six years prior to the bringing of suit. The
plaintiff testified that he made several demands for payment
and that the defendant put him off. On one occasion the
following conversation took place: 'He says
"Patterson, I don't see why on earth you bother me
you have plenty of money." I says, "You owe it to
me." He says, "Yes I know it and will pay it, but
you might give a man a chance to pay it -- give him
time."' On another occasion the plaintiff testified
'I asked him when he would pay. He said he did not really
know. I told him I would like to have it. He says, "I
will pay you all right, but I cannot do it just now, because
I haven't got it."' The plaintiff testified to
another conversation in Bradford, as follows: 'He said,
"Patterson, I will pay you every cent. I wish I had come
here a little sooner; I could make lots of money. I will make
lots of money before I leave, and I will pay every dollar;
you need not be afraid."' The acknowledgment to
remove the bar of the statute 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. The
cases cited by the defendant's counsel clearly show that
the foregoing conversations are insufficient, because the
particular debt was not identified in any manner.
"But
we are not convinced that the conversations which the
plaintiff testified took place in 1881 or 1882 are subject to
the same objection. We quote from his testimony: 'Well, I
met him here; he stopped me on the street, and asked me if I
had got any money. I told him I had. Well, I told him that I
had, and he told me he would like to have some money for to
send out to his son in Tucson, Arizona, -- on the lot that I
had bought from him. I says, "My God, what's the
matter with you? You want money! I don't intend to pay
you another damn cent. . . . I won't pay you any more
money until you pay me. You have humbugged me long enough,
and I won't stand it any longer." "Well,"
says he, "you need not be a bit afraid of me; I will pay
you everything I owe you." I says, "it don't
make any difference," I told him -- went all over the
work I had done, and told him how hard I had worked; went all
over this work I had done for him where he owed me the bill.
Says I, "I worked hard and up through the mud when there
was no streets up to your house; when I couldn't get a
man I took off my coat and did the work myself." I says,
"You never give me a damn cent." He told me, he
says, "You need not be a bit afraid; I will pay you
every cent, you need not be a bit afraid." I says,
"I don't care, I will not pay you anything,"
and I went off.'
"On
the following day the plaintiff concluded to pay something on
the contract. He testified: 'I had the money with me and
I counted it and give it to him, and it was put on the
contract. It was in the neighborhood of $300. I told him I
ought not to do it, but I hoped he would make something out
of it and would pay me. He says, no fear of that, he would
pay me every cent I owe you, and I repeated the same thing I
did over here; I told him about the hard work -- Q. How much
was claimed to be due on the balance of the lot? A. There was
$250 still due. Q. What did he say in reference to that
balance? A. He said he would have the deed made, and he would
given me credit for the $250 on that lot. Q. He would credit
you with $250 on what he owed you? A. Yes, sir. And said he
would pay the rest just as soon as ever he could.'
"The
defendant flatly denies having had any such conversations
but this conflict has been settled by the verdict in favor of
the plaintiff, and, whatever may be the truth, we must assume
for present purposes that the defendant made the
acknowledgments and promises referred to. Assuming this
testimony to be true, it proves an express and unequivocal
promise to pay a debt which the defendant owed to the
plaintiff for his services in the very matter for which the
suit was brought. There is no room for inference or even
speculation that the conversations related to some other
debt, and the nature and extent of the services out of which
the debt arose were directly before the minds of the parties.
Furthermore, the plaintiff's declaration that he had been
paid nothing, followed by the defendant's promise to pay
every cent amounted to an acknowledgment that the whole claim
was unpaid. But it is argued that the testimony is
insufficient because the amount of the debt was not stated,
and several cases are cited in support of this proposition.
We think, however, after a careful study of these and other
cases of the same class, that they do not go to the extent
claimed for them. The case of Huff v. Richardson, 19
Pa. 388, was a suit upon a book account. The evidence was
that the parties agreed to meet at a certain time when the
books would be present, and if the defendant could satisfy
the plaintiff that he was entitled to certain indefinite
credits which he claimed, they were to be allowed, and they
were then to settle off the books, and the defendant was to
pay the plaintiff. Regarding this evidence the court
pertinently remarked: 'To pay him what? The book account
as it stood? There is not a word to justify such an
inference. If he was to pay him the balance on settlement,
that is unascertained and is the claim in suit.'
Suter v. Sheeler, 22 Pa. 308, was an action to
recover wages for fourteen years' labor, the
acknowledgment and new promise relied on were indefinite, not
only as to the amount of the debt, but also as to the length
of service, and the monthly wages, and, as pointed out in the
opinion of the court, there were qualifying circumstances
affirmatively shown which made it uncertain whether the
acknowledgment related to the whole period or only part of
it. The court conceded that but for these qualifying
circumstances, according to some of the adjudged cases, the
evidence might be held to be a waiver of the statute as to
the contract of hiring declared on. In Shitler v.
Bremer, 23 Pa. 413, there was a naked admission of
indebtedness without in any way indicating the amount or
nature of the debt or from what it arose, and a promise to
pay something without any reference to the sum to be paid, or
what it was to be paid for. The point decided in Burr v.
Burr, 26 Pa. 284, was that the acknowledgment relied on
to remove the bar of the statute was not plainly referable to
the note in suit. The note was not present, nor was it
referred to by date, amount, or in any manner whatever. The
cases of Landis v. Roth, 109 Pa. 621; Hobaugh v.
Murphy, 114 Pa. 358; Mayfarth's Appeal, 1 Cent. R.
398, were decided upon the same ground. These cases are not
authority for a proposition that a new promise to pay a note
barred by the statute of limitations must specify the amount.
A note, at least, may be identified otherwise, and when so
identified that there is no doubt as to the note meant, the
amount of the note will determine the extent of liability. In
Yaw v. Kerr, 47 Pa. 333, identification by reference
to a note in a third party's hands was held sufficient to
sustain and make applicable the promise, which took the case
out of the statute. The case of Wolfensberger v.
Young, 47 Pa. 516, is so unlike the present, as hardly
to require notice. The letters relied on to remove the bar of
the statute contained no express acknowledgment of any debt,
referred to none specifically, ascertained no sum or amount
to be paid, and promised nothing absolutely. It was little
more than an offer of compromise. The case of Montgomery
v. Cunningham, 104 Pa. 349, was, in part, an action for
money lent, but the fact that the amount was not stated in
the conversation relied on -- the loan being otherwise
identified -- was not held to be fatal to the plaintiff's
case, either in the Supreme Court or in the court below. The
case did not turn upon this point, but on the question as to
whether the promise was conditional. In Lowrey v.
Robinson, 141 Pa. 189, there was no evidence of a clear
and unequivocal admission of indebtedness, nor any distinct
promise to pay any sum; there was simply a declaration of an
intention to pay, but this, said the court, is not the
equivalent of a promise to pay; 'it is more in the nature
of the expression of a desire to pay, and from this there is
no implication of a promise.' We do not dispute the
general principle recognized in these and many other cases,
that the promise, whether express or...
