Shaffer's Estate , 228 Pa. 36 ( 1910 )

Opinion by

Mr. Justice Moschzisker,

Hugh Ferguson presented a claim against the estate of Harvey Lyman Shaffer, deceased. It was disallowed on two grounds: 1. Insufficiency of proof to sustain the claim. 2. The bar of the statute of limitations. The matter is now before this court on the appeal of the claimant.

In the' year 1889 or 1890 Ferguson had been in Tennessee looking up some ore properties. He returned to Pitts-burg and made an arrangement with Shaffer to go to Tennessee. The details of this arrangement are not shown, but it appears that Shaffer was to secure a lease of a mineral property known as “Ducktown School Lot.” Ferguson was to advance the necessary money, and after such advances were paid back to him, he and Shaffer were each to have a one-half interest in the lease. Shaffer went to Tennessee, and secured the lease in his own name on January 21, 1891. Ferguson was dissatisfied with this, and went south to see Shaffer. They had a meeting in Tennessee on February 20, 1891, and Ferguson then and there accepted a written assignment from Shaffer of a one-half interest in the lease.

A corporation was organized under the laws of Tennessee called the Pittsburg & Tennessee Copper Company. Shaffer and Ferguson were two of the incorporators, and at the first meeting, held in Pittsburg, June 23, 1891, a resolution was passed that $50,000 in stock be given to Ferguson and Shaffer for this leasehold. At this meeting Ferguson abused Shaffer, and made a demand on him for the lease. On October 2, 1891, Shaffer assigned his one-half interest in the lease to the Hiwasse Company of Boston, through one Eager, who paid him $10,000 as a consideration for the assignment. On February 19, 1892, Ferguson transferred his one-half interest to the copper company, and received in payment $25,000 of the capital stock. The company then entered into negotiations with Shaffer to purchase his interest, and decided to acquire it for $12,500. On August 25, 1892, however, Ferguson purchased the interest in his own name for $12,000, and secured an assignment from the Hiwasse Company. So far as the evidence shows this transaction took place in either Boston or New York. On November 2, 1893, Ferguson assigned this interest to the copper company, and received $25,000 of its stock in payment. The copper company subsequently became insolvent.

In April or May of 1906 Shaffer came to Pittsburg and met Ferguson. “Shaffer walked up to him, extended his hand and said, ‘Hugh, oh, let by gone be by gone.’ Ferguson looked up with a very angry expression coming over his face, and quickly said: ‘If that is the case, you had better pay me what you owe me.’ Shaffer said: ‘Hugh, the next time I come to Pitts-burg we will take up our Tennessee matter, and I will pay you what you are out.’ ” The witness Bare who testified to this occurrence said that Shaffer remarked to him “that was an awful cold reception the old man gave me.” To which the witness replied: “You deserved it.” And Shaffer said: “1 intend to take that matter up with him [Ferguson] and settle it with him.”

The court below finds that: “Shaffer was a native of Pittsburg and a citizen of this state until 1890 or 1891, when he became a citizen of Georgia, and later a resident of New York; he frequently was in Pittsburg; but there is no evidence that he was a citizen of Pennsylvania after that time.”

Ferguson claimed $12,500, the amount paid by him to acquire the interest in the lease that Shaffer had assigned to the Hiwasse Company, with an alternative claim of $10,000, the amount which Shaffer received from Eager when he sold the interest to the Hiwasse Company; on the theory that Shaffer had been guilty of a breach of contract when he took the whole lease in his own name, or of a breach of trust when he sold the one-half interest to the Hiwasse Company. We are of opinion that the claims were obviously stale and barred by the statute of limitations.

But the appellant contends that they were saved from the bar of the statute by the Act of May 22, 1895, P. L. 112, to the effect “that in all civil suits and actions in which the cause of action shall arise in this state, the defendant or defendants in such suit or action, who shall' have become nonresidents of the state after said cause of action shall have arisen, shall not have the benefit of the statute of this state.” If Shaffer was guilty of bad-faith toward Ferguson, the breach which gave rise to the right of action, whether it was in wrongfully taking the lease in his own name in January, 1891, or in the sale of his interest to an outsider in October, 1891, occurred outside of the state of Pennsylvania. “A cause of action is that which produces or affects the results complained of:” Noonan v. Pardee, 200 Pa. 474. The phrase “cause of action” as used in the statutes fixing the jurisdiction of the courts according to where the cause of action arises, means that which creates the necessity for bringing the action. It arises when that is not done which should have been done, or that is done, which should not be done: Durham v. Spence, L. R. 6 Ex. Cas. 46; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367. The cause of action having arisen outside of the state, the present case does not fall within the act of 1895.

On the question of the acknowledgment of the debt, the trial judge states: “It does not appear that this claim was the subject of the conversation between Shaffer, Lare and Ferguson in 1905, or 1906; a settlement was mentioned; but of what? A promise to pay Ferguson what he was out, or to settle with him, is far from a promise to pay Ferguson $12,500 with interest for eighteen years. The long lapse of time would seem to exclude the claim as presented as the subject of this conversation. . . . Ferguson had abundant opportunity to enforce his demand against Shaffer; the latter had become a man of wealth; he was frequently in Pittsburg, and was easily found in New York. . . . Finally, this claim is within the class subject to the closest scrutiny because of its age and the attendant circumstances. It is especially in that class of claims which requires the claimant to proceed with diligence against his alleged debtor living, and not to wait until his opponent’s lips are sealed.” This is a correct view of the case. The words used by Mr. Justice Gordon in Miller v. Baschore, 83 Pa. 356, are applicable here: “The evidence was not sufficient to relieve the claim from the effect of the statute of limitations. In order to effect such a result there must be a clear and definite acknowledgment of the debt, a specification of the amount due or a reference to something from which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay. In the case under consideration the acknowledgment and undertaking of the defendant lack these essential characteristics.” In Gleim v. Rise, 6 Watts, 44, the plaintiff sent a messenger to the defendant to inquire about the collection of the debt. The defendant said that the plaintiff need not trouble himself, “that he would be down and settle with him.” We held: “There was nothing improbable in supposing that a man who says he will come down and settle, believes that there is nothing due by him, and had no idea that he was admitting himself to be in debt. The acknowledgment must go to the fact that the debt is still due.” In Kensington Bank v. Patton, 14 Pa. 479, we said: “The promise to pay must not be vague, shadowy and uncertain; it must be plain, unambiguous and express, and such as to preclude hesitation and doubt;” and in Schaeffer v. Hoffman, 113 Pa. 1: “The decisions of this court apply very strict rules to acknowledgments to take a case out of the statute of limitations. We mean to adhere to them in letter and spirit.” The acknowledgment depended upon was not sufficient under the authorities to toll the statute.

The assignments of error are overruled, and the decree is affirmed at the cost of the appellant.