Weaver v. Weaver
| Decision Date | 13 May 1867 |
| Citation | 54 Pa. 152 |
| Court | Pennsylvania Supreme Court |
| Parties | Weaver <I>versus</I> Weaver. |
Before WOODWARD, C. J., THOMPSON, READ and AGNEW, JJ. STRONG, J., at Nisi Prius
Error to the Court of Common Pleas of Schuylkill county.
J. Bannan, for plaintiff in error, cited Emmons v. Stahlnecker, 1 Jones 366; Sergeant v. Ewing, 12 Casey 156; Thompson v. Fisher, 1 Harris 313; Mellon v. Campbell, 1 Jones 415; 1 Chit. Pl. 343; Knowles v. Michel, 13 East 249; Von Swearingen v. Harris, 1 W. & S. 356; Bevan v. Cullen, 7 Barr 281.
W. B. Wells, for defendant in error, cited Harbold v. Kuntz, 4 Harris 210; Shaffer v. Shaffer, 5 Wright 51; Greenl. Ev. § 440; Emerson v. Miller, 3 Casey 278.
There was a time in Pennsylvania when the words written by Joseph Weaver at the bottom of his brother's statement of account might have been held sufficient to remove the bar of the statute; but that time has long since passed, and a closer approximation to the statute is now the rule. In Emerson v. Miller et al., 3 Casey 278, the debtor, in answer to the plaintiff's bill and demand for payment, said that he would "attend to it," or "fix it," or "settle it," before he left, being about to sail for Europe. In that case it was held that neither of the expressions, nor all together, were sufficient from which to imply an acknowledgment of the debt and a promise to pay it. This case but followed what had been held in Harrold's Executors v. Kuntz, 4 Harris 210, in which it was said that in order to take a case out of the Statute of Limitations, the acknowledgment of the debt must be clear and unequivocal, otherwise it is not equivalent to a promise to pay, and it ought to be so distinct in its extent and form as to leave no room for doubt or hesitation.
For this many recent authorities are cited.
The same learned judge, in the course of his opinion, illustrated the point under consideration as follows: "To say that I will settle with you, and pay you what I owe you, and all such forms of admission, are wholly uncertain, because you cannot tell what was in the mind of the person; he perhaps thought no money was due." Shaffer v. Shaffer, 5 Wright 51, fully maintains the same general doctrine.
The words used by Joseph Weaver, and which are to take the plaintiff's case out of the statute, did not amount to an unequivocal acknowledgment of the balance claimed, or any balance. It was, "I...
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