Funk v. Frankenfield , 71 Pa. 205 ( 1872 )

The opinion of the court was delivered, by

Sharswood, J.

Funk was the surety of Gangwer on the note in suit, and there was evidence from which the jury could have found that he was discharged from liability because of time given to the principal by a binding contract to that effect. So the learned judge below instructed the jury. But assuming this to be so, he held that if the two letters in evidence of December 21st 1869 and January 6th 1870, by Funk to Frankenfleld, referred to the note in question, and there was a delay to bring suit in consequence of Funk’s request for more time, they contained a binding promise to pay, whatever Funk’s position was previously to his writing the letters. In this we think there was error. Considering Funk as absolved from all responsibility, there is in the letters no absolute promise to pay the debt in consideration of forbearance. In the first, dated December 21st 1869, there is no promise at all.

“ Have patience until about January 3d, and I think you will receive your money.” It evidently means that, in his opinion, he would receive his money from Gangwer by that time. The second, January 6th 1870, states that he had been at Freemansburg, at Bloss’s, Esq., for money already three times, but did not meet him (either Gangwer or Esq. Bloss, or some one else, from whom money was expected). He then adds: “ 1 will pay you as soon as the money is obtained.” Admitting this to be an absolute promise to pay the money in a reasonable time, as soon as be, Punk, could obtain it, where was tbe forbearance to sue which was necessary to form the consideration of it ? This suit bad been then actually commenced. But it was not an absolute but only a conditional promise to pay, when be, Eunk, should obtain tbe money from Gangwer, or from bis book accounts, which had been assigned to bim for collection. Tbe justice to whom these books bad been intrusted to sue upon was probably Esquire Bloss, at Freemansburg, and the only fair construction which could be given to this letter is, that as soon as money should be collected from this source he would pay it to Frankenfield. No evidence was given that such money was ever obtained.

Judgment reversed, and venire facias de novo awarded.