Miller v. Baschore

83 Pa. 356, 1877 Pa. LEXIS 84

• Court: Supreme Court of Pennsylvania
• Decided: February 5, 1877
• Status: Published

Opinion

Mr. Justice Gordon

delivered the opinion of the court, February 5th 1877.

The evidence was not sufficient to relieve the claim of the plaintiff below 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 by 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. He writes: “I have received a letter from you some time ago asking of me what I intended doing with balance of a note I owe you.” In this there is nothing specific or definite, for it is not stated what note is referred to, neither is the amount of the balance indicated. The latter part of this letter is not less indefinite, for, after speaking of an arrangement to pay another creditor with whom he had compromised, he says: “And after he is paid I will pay you all I owe you, and if I can do anything for you before that time I will do so; you need not trouble yourself about me, that I will not pay you, for I expect to pay all I owe.” If, in Weaver v. Weaver, 4 P. F. Smith 152, the writing by the debtor under an account stated, “ I agree to settle with him for the above balance and any other just claim between us,” was not sufficient to take the claim, out of the operation of the statute, much less the promise above stated. In the case cited the claim and the amount were fixed beyond doubt or cavil; the fault occurred in the want of a promise to pay the sum thus fixed, for the undertaking was not to liquidate the account stated, but only to settle that and any other just claim his creditor might have against him; it was, therefore, at' best but a promise to pay what might appear to be due upon' an adjustment of their several accounts. Applying the above-stated doctrine to the case in hand and it is found to be utterly wanting in every element necessary to-rescue it from the grasp of the statute; the defendant promises to pay a balance of a note, but neither note nor balance is stated; he promises to pay what he owes, but whether that is much or little we are not informed; there is, in fact, neither the required certainty nor perspicuity in the evidence produced to break down the defence; hence the attempt has resulted in failure.

The judgment is reversed and a new venire ordered.