Smith's Estate

Superior Court of Pennsylvania

Smith's Estate

90 Pa. Super. 183, 1927 Pa. Super. LEXIS 39

CourtSuperior Court of Pennsylvania

DecidedNovember 8, 1926

DocketAppeal 226

StatusPublished

This text of 90 Pa. Super. 183 (Smith's Estate) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Smith's Estate, 90 Pa. Super. 183, 1927 Pa. Super. LEXIS 39 (Pa. Ct. App. 1926).

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Opinion

Opinion by

Trexler, J.,

At the audit held in the estate of Robert C. Smith, deceased, Joseph Smith, his brother, presented a claim founded upon a promissory note of $125, dated February 28, 1889', payable six months after date to the order of said Joseph Smith. Upon the note are two endorsements, “5/26/17 on acct. $15; 4/3/23 on acct. $15. ” The question is whether there is sufficient identification of the debt at the time the last payment was made to toll the statute.

E. M. Gilbert, Esq., testified that on the 3rd of April, 1923, the date of the last endorsement, both brothers were in his office. Joseph, the holder of the note, said to Robert, “You have owed me $125 on a note for many years, and I think it is. time it was paid.” Robert answered, “I know I owe you, it should Rave been paid long ago.” Joseph then said, “You *185 had better give me something on account of it. ’ ’ Robert paid him $15 on account of the note. “I wrote a receipt and Joseph Smith signed it and handed it to Robert. ’ ’ The note was not produced on that occasion. There was no reference' made to any other debt.

This we think was sufficient identification. The amount of the note was mentioned and thus a particular debt of a certain character was definitely referred to. The statement of the amount, it is claimed, loses its force by reason of the fact that $15 had been paid on the note in 1917 and thus the amount was reduced. It may, however, be noted that at the time the first $15 was paid, the accrued interest amounted to more than the payment and the principal of the note was still $125. Certainly it could not be expected that the holder of the note would give the exact amount of the principal and interest up to date when the demand was made. The principal of the note was expressly referred to and the demand pointed clearly to the note in question and a promise to pay having been given together with the payment on account, the bar of the statute was tolled.

The case of Burr v. Burr, 26 Pa. 284, upon which the appellant places his reliance, differs from the present case in this respect. There, there was a demand of interest “on that note you owe me” and no amount was mentioned. Here, the definite reference to the amount puts an entirely different phase on the matter. We repeat in the present case there was a promise to pay and an identification of the debt by an express fixing of the amount. This is all that is required. White v. Pittsburgh Vein Coal Co., 266 Pa. 145 and cases there cited.

The decree of the Orphans’ Court is affirmed, the appellant to pay the costs.

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Opinion by

Trexler, J.,

At the audit held in the estate of Robert C. Smith, deceased, Joseph Smith, his brother, presented a claim founded upon a promissory note of $125, dated February 28, 1889', payable six months after date to the order of said Joseph Smith. Upon the note are two endorsements, “5/26/17 on acct. $15; 4/3/23 on acct. $15. ” The question is whether there is sufficient identification of the debt at the time the last payment was made to toll the statute.

E. M. Gilbert, Esq., testified that on the 3rd of April, 1923, the date of the last endorsement, both brothers were in his office. Joseph, the holder of the note, said to Robert, “You have owed me $125 on a note for many years, and I think it is. time it was paid.” Robert answered, “I know I owe you, it should Rave been paid long ago.” Joseph then said, “You *185 had better give me something on account of it. ’ ’ Robert paid him $15 on account of the note. “I wrote a receipt and Joseph Smith signed it and handed it to Robert. ’ ’ The note was not produced on that occasion. There was no reference' made to any other debt.

This we think was sufficient identification. The amount of the note was mentioned and thus a particular debt of a certain character was definitely referred to. The statement of the amount, it is claimed, loses its force by reason of the fact that $15 had been paid on the note in 1917 and thus the amount was reduced. It may, however, be noted that at the time the first $15 was paid, the accrued interest amounted to more than the payment and the principal of the note was still $125. Certainly it could not be expected that the holder of the note would give the exact amount of the principal and interest up to date when the demand was made. The principal of the note was expressly referred to and the demand pointed clearly to the note in question and a promise to pay having been given together with the payment on account, the bar of the statute was tolled.

The case of Burr v. Burr, 26 Pa. 284, upon which the appellant places his reliance, differs from the present case in this respect. There, there was a demand of interest “on that note you owe me” and no amount was mentioned. Here, the definite reference to the amount puts an entirely different phase on the matter. We repeat in the present case there was a promise to pay and an identification of the debt by an express fixing of the amount. This is all that is required. White v. Pittsburgh Vein Coal Co., 266 Pa. 145 and cases there cited.

The decree of the Orphans’ Court is affirmed, the appellant to pay the costs.

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90 Pa. Super. 183, 1927 Pa. Super. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smiths-estate-pasuperct-1926.

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