Simrell v. Miller

Opinion by Mr. Justice Mitchell, The learned judge instructed the jury that the plaintiff must recover, if at all, on the testimony of Lowry and Harvey, the other witnesses being “ in a measure corroborative,” but not sufficient to make out the case if those two did not do so. Lowry testifies positively to the promise to pay, “ she promised that she would give Byron the money that fall,” but he does not identify the debt. He not only fails, but distinctly declines to say how much it was, but says the plaintiff went and got a paper, and his mother said “ the money that was on the paper was all right.” This paper is not produced, or accounted for, and without it the testimony amounts to nothing. It is not nearly so strong as that which was held insufficient in Landis v. Roth, 109 Pa. 621. [332] Harvey also refers to the paper but fixes the amount at $320. But he does not make out any sufficient promise to pay. According to him, the decedent said, “ if she couldn’t raise the money why he (the plaintiff) could have it out of the land.” This was at most a conditional promise to pay when able, and the additional statement that if she was not able plaintiff could have it out of the laud, is not a promise but a remission of plaintiff to his legal rights for a recovery. In Lowry v. Robinson, 141 Pa. 189, the promise was to pay “ when he got ready ” and “ he said he didn’t have the money just at present, but he intended to pay it when he had it,” and this court said emphatically that “ a claim twice barred by the statute of limitations should have a better foundation.” See also Linderman v. Pomeroy, 142 Pa. 168. Neither of these witnesses by himself makes out a positive promise to pay an identified debt, and without that plaintiff cannot recover, for even if a clear acknowledgment of the debt were made out, which it is not, the decedent being a married woman at the time of the alleged loan and the alleged promise, would not be bound by it: Kelly v. Eby, 141 Pa. 176. Nor can the testimony of the two witnesses be combined to bring either of them up to the required standard. As our brother McCollum said in Patterson v. Neuer, 165 Pa. 66, if an acknowledgment “ does not appear in either of their conversations it cannot be inferred from both. In other words several insufficient acknowledgments will not constitute a sufficient-one.” The plaintiff’s claim is brought forward under circumstances that raise every presumption against it. His alleged loan was made to his mother, a married woman at the time, and he waited twenty-five years and until she was dead before taking any steps to get payment. Parties who do this must understand that they will be held to strict proof of every step towards their claim. The plaintiff failed to make out his case, and the request for a binding instruction for the defendant should have been granted. Judgment reversed.