Coleman v. Erie Trust Co. , 255 Pa. 63 ( 1916 )

Opinion by

Mr. Justice Potter,

This is an action brought by J. Warren Coleman, Jr., against the Erie Trust Company, administrator of J.. Warren Coleman, deceased, the father of the plaintiff. It appears that in 1893, in the State of New Jersey, plaintiff obtained a judgment against his father, in the sum of $1,250. It was admitted upon the trial of this case,' that the defendant in the judgment left the State of New Jersey in 1899, and continued to live outside the limits of that state until his death in 1913. It also appeared from the evidence that judgments in any court of record in New Jersey may be revived by scire facias, or an action of debt may be brought thereon, within twenty years after the date of such judgment. But if the defendant removed from the state after judgment obtained, the time during which he was absent is not to be computed as part of the limited period in which action may be brought. When, therefore, after the death of his father, the plaintiff brought this actiop against the administrator, upon the judgment, to recover the balance due thereon, with interest, it is clear that his right of action was not barred by lapse of time. The defendant, however, relied upon the presumption of payment, arising from lapse of time, and upon certain declarations made by the plaintiff as to the judgment having been satisfied. In three letters to his brother-in-law and his sister, he referred to the judgment as being of no value and as having been satisfied. But on the trial he testified that he had been misled as to this, and that the attorney, who informed him that the claim was barred by the statute of limitations, had overlooked the fact that his father had removed from the State of New Jersey. The presumption of payment arising from lapse of time is not conclusive, but is merely a presumption o.f fact which is rebut-table. “The presumption is rebutted, or, to speak more accurately, does not arise, when there is affirmative proof ......that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor”: Reed v. Reed, 46 Pa. 239, 242. Further on in the same opinion Mr. Justice Strong said, presumption from lapse of time, “is only an inference that the debtor has done something to discharge the debt, to wit, that he has made payment. Hence it is rebutted by simple proof that payment has not been made. And the facts being established, whether they are sufficient to rebut it, is a question for the court, and not for the jury.” In this instance there, was affirmative proof that the judgment had not been paid, in the positive testimony of the plaintiff to that effect. The facts were not in dispute, and it was, therefore, for the court to say whether or not the judgment was a valid clajm. In addition to the affirmative proof that the debt had not been paid, the circumstances shown, were such as to reasonably account for .the delay. It appeared that the debtor was for years in straitened financial circumstances, and had but a small income, which would have been seriously disturbed had payment of the judgment been pressed. The relationship- of father and son between the defendant and plaintiff was also a sufficient and natural reason for the delay of the latter in enforcing payment. We agree with the conclusion of the court below that the evidence clearly rebutted any presumption of payment that may have arisen, and that binding instructions in favor of the plaintiff were proper.

The assignments of error are overruled, and the judgment is affirmed.