McCollum v. McCollum , 86 Pa. Super. 208 ( 1925 )

Argued April 20, 1925. It is unnecessary to enter into an extended discussion of the law applicable to this case. That has been fully and carefully done by the learned trial judge in the opinion on the motion for a new trial. It is not a sufficient answer to the plaintiff's claim that it was sustained by his testimony alone. He was a competent witness and his evidence having been credited by the jury forms a sufficient support to the verdict. If, as he testified, the conversation between him and the appellant took place with reference to the note and check and receipt which were the subject of controversy, so far as this appeal is concerned, there was a specific identification of the indebtedness. The written obligations of the defendant were produced and commented on and the acknowledgment of the indebtedness was made when the obligations were within the view of both of the parties. On that state of facts we regard the promise as sufficient to remove the bar of the statute.

There is the further feature of the case however that the plaintiff declared not only on the acknowledgment of the indebtedness, but also on a specific promise to pay, made on the occasion; the consideration being the endorsement by the defendant of the plaintiff's note given to the bank to secure a loan. It is admitted that this note was signed as bail and the defendant obtained the money at the bank. A promise has greater force than an acknowledgment. It creates a new agreement and if the plaintiff's account of the transaction is true, there was a new obligation to pay which was sufficient to toll the statute. Whether it was given on the promise set forth in the statement and testified to by the plaintiff, the jury alone could determine. The evidence is fully reviewed by the trial judge and we regard his discussion as a satisfactory disposal of the case.

The judgment is affirmed.