Foringer v. Sisson , 14 Pa. Super. 266 ( 1900 )

Opinion by

Rice, P. J.,

This was an action of assumpsit for a balance alleged to be due for medicines furnished and medical services rendered between July 21, 1890, and January 3, 1893. The action was brought February 24,1898. To avoid the bar of the statute of limitations, as to the items more than six years old, the plaintiff introduced the testimony of Paul A. Benson, which was to the effect, that in February, 1894, after Mrs. Brown had received a statement of the account, she gave him a receipted bill for a small account she had against the plaintiff and $50.00 in money and directed him to pay the plaintiff the same in full satisfaction of his claim, and to get a receipt from him to that effect; that the plaintiff refused to give a receipt in full; that, after reporting to Mrs. Brown and her attorney, they directed him, to use his language, “ to go back and pay the money and take a receipt for the $50.00 and the $13.00, of the bill which I did; at least my recollection is I got a receipt, and I don’t know but my instructions were to pay it, and that they were not particular about the receipt.” So far as the identification of the debt or account, upon which the payment was to be applied, is concerned, there is no difficulty. Nor, if the case rested here, would there be any serious doubt as to the effect to be given to the payment. But the witness further testified that Mrs. Brown disputed the amount of the bill, and claimed that the amount tendered and paid was all she owed the plaintiff, and, moreover, that he, the witness, told the plaintiff that that was all she would pay him, and if he wanted the balance of his claim he would have to sue for it; that she would not pay it unless she had to. This, it is to be noticed, is the testimony of the plaintiff’s witness, and is the only testimony bearing on the question.

A payment on account stops the running of the statute, because it is deemed a constructive acknowledgment from which a promise to pay the balance is to be inferred. But the supposition that there is more virtue in a part payment than in a new promise is groundless, and no decision gives it countenance: Coleman v. Fobes, 22 Pa. 156. It is an act from which a new promise is inferred; but the inference of a new promise despite the debtors’ declaration that he owes no more and will pay no more would be a pure fiction, not a thing of truth. It would seem strange, if a debtor cannot pay that part of a claim which he admits he owes, at the same time denying liability for, and expressly refusing to pay, the balance, without incurring the risk of having his act construed, after his death, as an unequivocal acknowledgment of the whole claim, and an inferential promise to pay it. This is not the true doctrine “ Even where the acknowledgment is express, instead of constructive, or the promise direct, rather than inferential, no ambiguity or uncertainty in the one or the other can be tolerated .... The better rule undoubtedly is, that the acknowledgment must not only be clear, distinct and unequivocal of the existence of a debt, but that it must be plainly referable to the very debt upon which the action is based. It matters not where the uncertainty lies, whether in the acknowledgment or in the identification, its existence is equally fatal to the plaintiff’s recovery: ” Burr v. Burr, 26 Pa. 284. This doctrine, whatever may be said of the propriety of its application to the facts of that case, stands unimpeached: Barclay’s Appeal, 64 Pa. 69; Landis v. Roth, 109 Pa. 621; Patterson v. Neuer, 165 Pa. 66. See especially Graham v. Keys, 29 Pa. 189, where it was held that an acknowledgment and offer to pay the principal of a debt barred by the statute of limitations coupled with a refusal to pay the interest takes the principal, but not the interest, out of the statute. “ To be consistent with a promise to pay the debt, the acknowledgment must be such as indicates an intention to pay the debt, at the time of the acknowledgment. The time of payment need not be immediate, but the intention to pay must be present. Hence any language inconsistent with this present intention must be inconsistent with a new promise .... An acknowledgment is less in force than a promise, and hence the necessity of scrutinizing closely the extent of meaning the language of the acknowledgment has:" Senseman v. Hershman, 82 Pa. 83. If this be true where an actual acknowledgment is alleged it is equally true of a constructive acknowledgment. In short, a new promise, or a waiver of the right to take advantage, by plea of the statute of limitations, of any such lapse of time as may have occurred previous to the payment, will not be inferred as a matter of fact, nor be implied as a matter of law, where the admitted circumstances of the payment clearly repel such inference or implication. Applying these principles to the facts of the present case we are compelled to conclude that this was not such a “ part payment on account ” as would warrant an inference of an acknowledgment of liability for the whole of the plaintiff’s claim. If it clearly appeared that when the witness went back the second time he assented to treat the payment as “ a payment on account,” without more, the case might be different; but we do not so understand his testimony. The plaintiff could not conclude Mrs. Brown by so wording the receipt.

A. E. Sisson was not an incompetent witness by reason of his being the administrator of the deceased defendant, and as such, a party to the record. This of course must be, and is, conceded. It is equally clear, that he was not incompetent by reason of his having been Mrs. Brown’s attorney at the time the instructions testified to by Mr. Benson were given. He was not a surviving or remaining party to the thing or contract in action, he had no interest adverse to any right of the deceased party thereto, and the testimony he proposed to give did not consist of confidential communications made to him by his client. He was not within any of the exceptions to the general rule of competency, and we have no authority upon the ground of supposed inequality to exclude witnesses from testifying whom the legislature has not made incompetent. As to the substance of the testimony he proposed to give, it seems sufficient to say, that, if it was relevant for the plaintiff to show that Mr. Benson was acting under instructions given to him by Mrs. BroAvn and her attorney, it was equally relevant for the defendant to introduce the testimony of another witness Avho was present at the time. The effect to be given to the testimony is another question. It Avas relevant for the purpose of contradicting the testimony of Mr. Benson as to what took place at that time, although it may not have been relevant for every purpose, and probably would not have been admissible if Mr. Benson had not been called by the plaintiff to testify as to the same occurrence.

The assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.