Ward v. Jack

Opinion by Mr. Justice McCollum, The learned court below properly characterized the plaintiff’s claim as stale, and held that under the pleadings he could not recover upon it unless the bar of the statute was removed by the conversation testified to by Watson. The case was submitted to the jury under instructions which allowed them to [420] find, in the conversation referred to, a clear and unequivocal acknowledgment of the claim, a reference by which the amount of it could be definitely ascertained, and a promise to pay it. Whether the conversation authorized the conclusions drawn from it is the principal question to be considered on this appeal. It was brief and we quote the material part of it. Watson said: ‘Mr. Neel and I were sitting on some lumber, and Mr. Ward came down and asked Mr. Neel about his books. He asked Mr. Neel about the settlement of his books. Mr. Neel said, ‘Mr. Ward, that ought to have been settled long ago and you shall have your money inside of ten days ; before this though Mr. Ward said to him that the limitation was about to cut him out. Neel replied to him, Mr. Ward, I wouldn’t allow that limitation to cut you out if it was now, if it was six years now. He said he would have Flint look after the books.’ ” There was nothing developed in the cross-examination of the witness which qualified his testimony as we have quoted it, and we must therefore accept it as a correct statement of the conversation relied on by the plaintiff to toll the bar of the statute. In order to give it the effect he claims it is entitled to, it must be held to contain a clear and unequivocal acknowledgment of the debt, a specification of the amount of it, or a reference to something by which the amount can be definitely and certainly ascertained, and an express or implied promise to pay it. If these essentials to the maintenance of the suit are included in the conversation detailed by Watson they must be found in that part of it which may be correctly summarized thus: “Ward asked Neel about the settlement of his books,” and Neel replied, “ that ought to have been settled long ago and you shall have your money within ten days.” The expression “ you shall have your money ” means no more than the words “ I will pay you all I owe you,” and these were regarded as insufficient in Miller v. Baschore, 83 Pa. 356, to remove the bar of the statute, although they plainly referred to the balance due on Miller’s note which Basehore then held. In Landis v. Roth, 109 Pa. 621, the promise of the former was express and related to a note which the latter held, and it was adjudged insufficient, although it was not shown that “Landis had given Roth any other note than the one in suit.” These decisions followed the rule on which Burr v. Burr, 26 Pa. 284, was de [421] termined, and in which Knox, J., speaking for this court on the subject we are now considering said: “ The better rule undoubtedly is that the acknowledgment must not only be clear, distinct and unequivocal, of the existence of a debt but that it must also be plainly referable to the very debt upon which the action is based. It matters not where the uncertainty lies, whether in the acknowledgment or in the identification, its existence is equally fatal to the plaintiffs recovery.” We cite these .cases as illustrations of the rule in regard to the identification of the debt, alleged to have been acknowledged and because we think the case in hand is fairly governed by them. “Ward asked Neel about the settlement of his books,” is too vague and uncertain to be justly regarded as an identification of the debt or such a reference as the law requires as a substitute for it. Judgment reversed and venire facias de novo awarded.