Johns v. Lantz

[326] The opinion of the court was delivered, January 3d 1870, by Sharswood, J. — The decisions of this court apply very strict rules to acknowledgments to take a case out of the Statute of Limitations, and very rightly so. We mean to adhere to them in letter and spirit. The present state of the law was well summed up by our brother Agnew in one of the latest: “ In order to take a case out of the operation of the statute, the acknowledgment of the debt must be clear, distinct and unequivocal. It must be so distinct and palpable in its extent and form as to preclude hesitation. A naked admission of indebtedness, without anything indicating the amount or nature of the debt, or a promise to pay something without a reference to the sum to be paid, is insufficient:” Wolfsenberger v. Young, 11 Wright 516. No case, however, has ever gone the length of saying that there must be an express promise to pay in terms, and unless we are prepared to go that length we must reverse this judgment. To hold so we must overrule Hazlebaker v. Reeves, 2 Jones 264, and Davis v. Steiner, 2 Harris 275, in.both of which acknowledgments without a promise were sustained, and the acknowledgments themselves by no means so clear, distinct and unequivocal as that presented on this record. What shall be done with the many cases in which the rule of law has been stated in terms which either expressly, or by clear implication, exclude the necessity of a promise to pay ? Cowan v. Magowan, Wall. 65; Fries v. Boisselet, 9 S. & R. 128; Eckert v. Wilson, 12 Id. 393; Bailey v. Bailey, 14 Id. 195; Gilkyson v. Larue, 6 W. & S. 213. It is still the law that a clear, distinct and unequivocal acknowledgment of a debt as an existing obligation, identifying it so that there can be no mistake as to what it refers to, made to the creditor or his agent, takes a case out of the statute. A debtor and creditor sit down together, in the presence of a witness, examine their books, and state an account of the several items of indebtedness in writing, and the debtor assents to it as correct. Would it add anything to the force of this transaction if he added, “ I promise to pay you this amount ?” Yet that is exactly this case upon the testimony of the witness, Dr. Dodd. It does not vary it that the prices of the grain were not ascertained at the time. The decedent expressly authorized Dr. Dodd to ascertain them, at the same periods, from the mill book of a neighboring mill, which he did. Nor does the fact stated by the witness, “ when we settled the mill account it was laid over till they had a settlement of the other accounts,” in any degree disturb the clear, distinct and unequivocal character of the acknowledgment. At most it was an agreement to postpone the payment until those other accounts were settled. Those other accounts were settled with the executors, leaving out the mill account in question, and the reason it was not included was that the mill books were lost and the executors were unwilling to admit [327] the copy produced, without an affidavit of its correctness by the witness, Dr. Dodd, who was then absent in the army. We think that the evidence should have been submitted to the jury. Judgment reversed, and venire facias de novo awarded.