Petriken v. Baldy

7 Watts & Serg. 429

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1844
• Status: Published

Opinion

The opinion of the Court was délivered by

Rogers, J.

It has been frequently regretted that the fourth clause of the Statute of Frauds, 29 Car. 2, ch. 3, which requires that to charge a person for the debt, default or miscarriage of another, the agreement should be in writing, was not extended to this State. In Pennsylvania, however, the law' is otherwise, for such agreements may be proved by parol; but as a protection against fraud, it is required that the evidence of the promise should be clear and explicit, that there should be no room to suspect mistake, misapprehension, or any unfairness in the transaction. The first objection is contained in the first bill of exceptions. It is the charge in the book account, against the defendant, of the assumption of the debt of Hugh Laughlin. It is not pretended that this is such an item as is properly chargeable in a book account, but it is insisted that with the aid derivable from the clerk who made the- entry, it was properly received in evidence. He says he would not have made the entry, he is satisfied, unless the defendant, Doctor Petriken, had directed it. That it was the usual way of entering the amount, when a person assumed for another, charging the amount assumed. That it was the custom not to charge with Mr Baldy’s house without the authority of the person who assumed to pay for another. He says he never put a charge on the book without the direction of the person who had assumed. He thinks he never made such an entry by direction of Mr Baldy alone. He has no recollection of making the entry. It is his handwriting. We think the testimony entirely too uncertain and unsatisfactory. It is not unreasonable to require clear and explicit proof of the agreement; and this is absolutely necessary to guard against fraud. ■ If by an inspection of the book he had remembered that the entry was made on the authority of the defendant, it would be a different question, for the book is only important as a means of.refreshing the memory of the witness. But, unfortunately, he has no recollection whatever of it. And the only evidence of the agreement is an inference, which he derives from the fact that it is in his handwriting, and his belief that he never put such charges in the books without the direction of the person who had assumed to pay.

In connection with this, is the charge of the court in relation to the assumption of the debt against Francis Tully. It is alleged that the defendant assumed to pay this bill. That Tully was indebted to the plaintiff, would not seem to be questioned; but did the defendant assume to pay the debt? The only evidence we have of the agreement is contained in the testimony of Mr Clayton, who-, after speaking of the request of the plaintiff that he should, as' his clerk, call on Doctor Petriken for the amount of Tully’s debt, says, on the morning the estimate was to be paid over to the contractors, he met Doctor Petriken and asked him about some of the contractors, and told him he was directed by Mr Baldy to call on him for the amount of this bill against Mr Tully. He had not the bill with him. The Doctor replied, that he had better attend to some other accounts, which were, as he said, much more in danger of being lost than this; that he and Mr Baldy would fix that themselves. That Tully could not draw any money from the Canal Commissioners,- as he (the Doctor) had the drawing of the money on that contract. That there was some understanding between the plaintiff and defendant in relation to,the debt of Tully may be reasonably inferred from the evidence, but what the contract or agreement was, nowhere appears. The money due Tully on his contract was to come through the hands of the defendant, but as it belonged to Tully, Doctor Petriken would have no right to pay it to Baldy without the assent of Tully, and there is no proof that Tully assented to any such disposition of the money. But did the defendant make himself absolutely responsible to the defendant, and if so, what wras the consideration of the promise to pay? Of the nature of the agreement we are left in the dark, and of any consideration I cannot perceive a particle of proof. Of these material points we are left entirely to conjecture. To make the defendant amenable for this debt, it is necessary for the plaintiff to prove, distinctly, the agreement or promise to pay the debt, and that the promise was made on a sufficient consideration. On both points the plaintiff’s proof is defective. In the declaration it is alleged that the promise is in consideration of forbearance. It cannot be seriously contended that there was any contract made with Clayton, who acted as the agent of Baldy; if his evidence proves anything, it proves a pre-existing contract between Petriken and Baldy. It appears that Tully was a sub-contractor under Petriken', and that the money, under some arrangement, was receivable by Petriken; but that would not authorize Petriken to pay Baldy without Tully’s consent, and such assent is neither shown nor alleged. Why, then, should Petriken assume to pay this debt ? What reason had he, what motive or consideration was there moving from Baldy to induce him to become liable for the debt of Tully, when, under the evidence, if he paid he must do so at his own risk? We may readily believe, that standing in the relation he does to Baldy and Tully, he may have been willing to lend his friendly aid to Baldy in collection of the debt he had against Tully. But beyond this, no legitimate or safe inference can be drawn. On neither point, therefore, does it seem to me that the plaintiff has given such evidence as we have a right to require, for it must be remembered, on him is thrown the burthen of proof. On another trial, the declaration may be amended so as to avoid the objections made to it. It may be sufficient to observe, that in the other point we perceive no error.

Judgment reversed, and venire de novo awarded.