Armstrong v. Levan , 109 Pa. 177 ( 1885 )

Mr. Justice Paxson

delivered the opinion of die court,

The defendant below was sued for breach of official duty as prothonotary in not properly entering a judgment, by means whereof its lien was postponed and the plaintiff suffered a loss.

The defendant pleaded the general issue and the Statute of Limitations. To meet the plea of the statute the plaintiff called a witness, who testified as follows: “ After I discovered that there was no judgment in favor of Hannah Levan against Enoch Rohrbach, but there was one against Enoch Rothenberger, which I knew from the number to be meant as the one against Rohrbach, I went to see Air. Armstrong in reference to the matter. I said to him that he had made this mistake, or if not he, his clerk, and that unless this matter was fixed up, I would be obliged to sue. He then made the remark that he would have to see his lawyer first, Mr. Reber. On the afternoon of the same day, I think it was, he came to my office, alone that time, and he said that I should see Mr. Reber; and I said to him again what I said in the morning in reference to suing. He said that I should not sue; that if Airs. Levan suffered any loss by reason of this mistake, he would make it good to her; that she should not lose anything through his mistake. That was in the spring of 1879, I think during the first days of April.”

The court below held that this evidence, if believed by the jury, was sufficient to bar the running of the statute; and that the six years would only commence to run from the date of such promise.

The plaintiff in error has given us an elaborate argument to show that a promise to pay after the statute has run, will not revive a tort, and has cited numerous authorities in support of 1 his proposition. We concede his law to be sound ; his authorities fully sustain his point. The difficulty in his way is they do not meet his ease. It was not the question of the revival of a tort by a promise to pay made after six years. The conversation referred to occurred before the statute had run, and it was a distinct promise to pay in consideration that the plaintiff below would not sue. If, therefore, she relied upon this promise^ if she was thereby lulled into security, and thus allowed the six years to go by before she commenced her suit, with what grace can the defendant now set up the statute? The promise operated not to revive a dead tort, but as by way of estoppel. It has all the .elements of an estoppel.. The plaintiff relied and acted upon it; she has been misled to her injury; but for the defendant’s promise she would have commenced her action before the six years had expired. We think the learned judge below was right in holding that the six years would only commence to run from the date of the promise.

The defendant’s fourth point called upon the court to instruct the jury that under the pleadings and the evidence in this case the verdict should be for the defendant. This the court declined to do. It was urged in support of this point that the record testimony established the fact that the plaintiff’s judgment was properly entered in the judgment docket although erroneously indexed in the judgment index; and that the subsequent Singmaster judgment, therefore, acquired no prior lien, notwithstanding the finding and decision of the Auditor.

This is to ask us to overrule the Auditor and court below upon the question of distribution, arising in another and distinct proceeding. We find no trace in this record that any such question was made in the court below. The learned judge makes no reference to it, and no such specific point was put to the court. That question has been settled by a court of competent jurisdiction, and it shows that the plaintiff has lost a portion of her money by reason of the defendant’s mistake. This is sufficient to entitle her to recover.

Judgment affirmed.

Mercur, C. J., and Gordon, J., dissented.