Tridell v. Munhall

• Decision Date: 08 July 1903
• Docket Number: 30.
• Citation: 124 F. 802
• Parties: TRIDELL v. MUNHALL.
• Court: U.S. District Court — Western District of Pennsylvania

124 F. 802

TRIDELL v. MUNHALL.

No. 30.

United States Circuit Court, W.D. Pennsylvania.

July 8, 1903

Jno. B Chapman and Ac. C. Gettys, for plaintiff.

W. A Way, for defendant.

ARCHBALD District Judge.

^[1] According to the Pennsylvania practice, it is largely for the trial judge to say what papers shall go out with the jury and the sending out of a declaration, and of a mechanic's claim with a bill of particulars attached, which amounts to the same thing, have been expressly sanctioned. Hall v Rupley, 10 Pa. 231; Odd Fellows Hall v. Masser, 24 Pa. 507, 64 AmDec. 675. This may not be controlling on the federal courts, but it is at least suggestive, particularly as it is sustained by the general practice. Thus, in Shulse v. McWilliams, 104 Ind. 512, 3 N.E. 243, it was held permissible to allow the pleadings to go out; and in Bluedorn v. Pacific Railway, 121 Mo. 258, 25 S.W. 943, it was said to be within the discretion of the court to do so; while in McGinty v. Keokuk, 66 Iowa, 725, 24 N.W. 506, it was considered no error where the jury had been correctly instructed on the issues; and in Smith v. Holcomb, 99 Mass. 552, the sending out of an amendment to the writ increasing the damages claimed was allowed. In the present instance it was peculiarly important that the jury have the plaintiff's statement before the, not only because it showed the specific items of her claim, but because the charge of the court was directly based upon it. Going over it item by item, attention was called to the evidence bearing on each, and the discrepancies between the amounts proved and those claimed pointed out. Certain of them also were directed to be entirely disregarded, as being without evidence to sustain them. The statement was thus virtually incorporated into the charge, and it is difficult to see how the jury could have followed and applied their instructions without having it before them. I am not convinced that the discretion of the court in allowing it was wrongly exercised

The jury gave a verdict which aggregated $6,000. This covered whatever was furnished by the plaintiff to the defendant in the way of board and services for a period of about 10 years, and on an average would amount of $600 yearly--an estimate which no doubt guided the jury, to a certain extent, in the verdict rendered. The question is whether this was warranted by the evidence. It must be confessed that the items of claim as set out in the declaration are open to the criticism made of them by the defendant's counsel, and, if there was nothing more in the case than the direct proof with regard to their character, extent, and value, the verdict could hardly be sustained. But in addition to this, such as it was, we have the testimony of several witnesses that the decedent himself put an estimate on what the plaintiff had done for him considerably in excess of the verdict, speaking of $1,000 per year, and inquiring of the plaintiff if that would be satisfactory. It is also to be remembered that the decedent had something more than his mere room and board; and, while it is shown that he did some little work at times as a waiter, it does not appear to have been very much, and the plaintiff meanwhile, with little hope of recompense, not only supplied him with the necessities of life, but gave him a home, nursing him and caring for him, whether able and inclined to work or not. If the witnesses are to be believed, the decedent intended that ultimately she should be paid for it, and paid well, and in the light of their testimony it cannot be said that the verdict is excessive. Six hundred dollars per year may be fully as much as the services rendered were worth, judged by what testimony we have with regard to them directly, but, taking all the evidence, I cannot see that ti goes beyond all bounds. The amount was for the jury, and I do not feel called upon to disturb their verdict.

The rule for a new trial is discharged.

The real question in the case is raised by the reserved point. The action was brought July 5, 1902, and according to the law of Illinois, where the case arises, all of the plaintiff's claim over five years old was barred by the statute of limitations, unless the bar was removed by a new promise or a subsequent unambiguous acknowledgment or payment of account. Under the instructions of the court the jury separated that which they found due prior to July 5, 1897, from that which was subsequent, and their verdict as to the former was taken subject to the point reserved, whether as to that part of the claim there was any evidence sufficient to toll the statute. This question is to be determined by the local law, and the decisions of the Illinois courts are controlling. They are in a general way in line with those of other states, but by no means hold to the stringent rule which prevails in Pennsylvania. It is sufficient, in order to remove the bar, to show 'an express promise to pay the money, or a conditional promise with a performance of the condition, or an unconditional admission of the justness of the debt. ' Parsons v. Northern Illinois Coal & Iron Company, 38 Ill. 430; Carroll v. Forsyth, 69 Ill. 127; Kallenbach v. Dickinson, 100 Ill. 427, 39 Am.Rep. 47. According to Waldron v. Alexander, 136 Ill. 550, 27 NE. 41, the acknowledgment and promise to pay, to be sufficient, must arise out of facts which identify the debt with such certainty as will clearly determine its character, fix the amount due, and show a present unqualified willingness and intention to pay it. And in O'Hara v. Murphy, 196 Ill. 599, 63 N.E. 1081, it was said that a promise by the defendant to pay the plaintiff every cent he owed him sufficiently identifies the debt in the absence of proof that there is any debt or account between the parties other than the one sued on. So in Ditch v. Vollhardt, 82 Ill. 134, where the debtor admitted that he owed about $1,500, but said he could not fix the precise amount until a settlement was had, and promised to pay a part at a date named, it was held sufficient. As to what is or is not to be regarded as a condition, the case of Horner v. Starkey, 27 Ill. 13 (s.c.,sub nom. Sennott v. Horner, 30 Ill. 429), is instructive. It was there declared by the maker of certain promissory notes that if the payee would wait awhile he would pay them; that he was not in a condition to pay them then, but when he made a raise he would do so; and this was held to be an absolute promise. 'If his language is properly reported,' says Caton, C. J., 'he meant to convey the idea that he would certainly pay the debt, but wanted further time to do so. * * * He did not intend to convey the meaning that he would pay only upon the condition that his circumstances should subsequently so improve as to place in his hands the means to do so. ' On the other hand in Mullett v. Shrumph, 27 Ill. 107, where the defendant said he would settle as soon as he got the money for certain work: 'This,' says the same learned justice, 'was a conditional promise, and could neither serve for the foundation of an action itself, nor waive the statute of limitations, without at least proving that the defendant had received the money. ' So, in Boone v. A'Hern, 98 Ill. app. 610, a declaration by the defendant that he would pay if he had the money, and that when he got it he would do so, is not good without proof that the latter condition has been fulfilled.

These views are in accord with the general trend of the authorities. Thus, in Philips v....