White v. Pittsburgh Vein Coal Co.

Opinion by Mr. Justice Walling, This is an action of assumpsit for services and expenses in the surveying, etc., of coal lands. In January, 1901, plaintiff, a civil engineer at Pittsburgh, entered into a written contract with the defendant coal company, through J. V. Sloan, its secretary and treasurer, — 147 — for the surveying and plotting of ten thousand acres of coal lands surrounding Roney’s Point in Ohio County, West Virginia, at the price of twenty-five cents an acre. The contract called for a completion of the work by March 15, 1901. The consideration of $2,500 was to be and was paid by defendant from time to time as the work progressed, the last payment being made June 4, 1901. Of the land so surveyed defendant purchased 8,333 acres. Sloan was the promoter and organizer of the defendant company and, in May, 1901, through his efforts, another company, named the Pittsburgh Seam Coal Company, was chartered and of it Sloan also became secretary and treasurer. Some of the stock in both companies was held by the same parties and some was not. Among others the president of the Seam company was not a stockholder in the Vein company. However, it was the intention of both companies to operate in West Virginia, and Sloan, who was the most active member in each company, made an oral agreement with plaintiff, subsequent to the written contract, to extend his surveys on the same terms so as to embrace in all about 25,000 acres. Plaintiff contends that defendant was to pay for the additional surveying, but the agreement as to that does not appear to have been very definite. At that time Sloan intended to, but never did, organize a third company, and the evidence tends to show that he told plaintiff, in effect, to go on with the work without reference to the prospective purchasers and that he (plaintiff) would receive checks from the different companies, who would arrange among themselves as to the ownership of the various tracts. As the work progressed beyond the first 10,000 acres, the Seam company, through Sloan, made sundry payments to plaintiff, the first of which was on June 11, 1901. The work was finished late in the summer of that year, but defendant neither paid nor promised to pay plaintiff anything after the payment of June 4, 1901. Of the lands so surveyed the Seam company purchased 10,450 acres, but the hold — 148 — ings of the two companies, as well as their corporate existence, were entirely separate and it does not appear that the Seam company ever acted in any matter as agent for the Vein company, and there was no partnership or joint interest between them. On February 3, 1902, the Seam company made its last payment, being for $369.40, to one McBride on plaintiff’s order, to which we will hereafter refer. In all, that company paid plaintiff $3,295.39, making the amount received by him from both companies $5,795.39. This suit brought November 9, 1907, was for a balance of $2,711.28, claimed by plaintiff, and embraced several items hereinafter referred to. It does not satisfactorily appear that defendant received any benefit from the additional surveying, and plaintiff never rendered any bill or statement of the account to either company, or to Sloan, until after this suit was brought. The defendant set up, inter alia, lack of authority in its secretary and treasurer to make the oral contract for the additional surveying, and also the statute of limitations. The trial judge instructed the jury, in substance, that the payment of $369.40, within six years of the bringing of the suit, tolled the statute and submitted to them the question of the agent’s authority to make the oral contract. The verdict was for plaintiff, and from judgment entered thereon defendant brought this appeal. The request of defendant for binding instructions should have been granted. Admittedly the work was completed more than six years before this suit was brought, and the payment relied upon was not made by defendant or its agent or on its behalf, nor was it ever acknowledged or ratified by defendant. While Sloan was agent for each company, in that transaction he was acting for the Seam company and paid McBride with a check drawn in its name and on its bank account. Defendant’s name is not mentioned either in the order, check or receipt. Plaintiff was not misled, for checks paid him after June 4, 1901, were in the name of the — 149 — Seam company. A payment, to toll the statute of limitations, must be made or authorized by the debtor: Wesner v. Stein & Greenwalt, 97 Pa. 322; Furst v. Building & Loan Assn., 128 Pa. 183; Watts et al. v. Devor, 1 Grant 267. The companies were not partners and even if joint debtors a payment by one would not toll the statute as to the other: Clark v. Burn, 86 Pa. 502; Lazarus v. Fuller, 89 Pa. 331. The Seam company was the party benefited by the additional surveying, and, treating it as the principal and the Vein company as surety, still a payment by the former would not remove the bar of the statute as to the latter: Homewood Peoples Bank v. Hastings, 263 Pa. 260; Homewood Peoples Bank v. McCutcheon, 266 Pa. 116, filed herewith. And the defendant was not bound by the act of Sloan, done as agent for the other company, as a principal is not bound by the act of an agent done for and on behalf of another principal. There is an additional reason — a payment to toll the statute must be an acknowledgment of the debt from which the law will imply a promise to pay; and to constitute such acknowledgment the debt must be identified and its amount fixed expressly or by reference to something from which it can be ascertained. Here there was no bill or copy of the account rendered or statement of the amount claimed and the order given McBride, viz: “I, J. D. White, hereby assign to Wilbur McBride the money to the extent of $369.40, being part of a fund due me by, and in the hands of J. V. Sloan of Pittsburgh, Pa;; and I hereby authorize J. V. Sloan to pay the same to Wilbur McBride, his agent or attorney. Jas. D. White,” does not refer to either company or in any manner identify the debt or fix its amount. So, had defendant authorized payment of the order, it would not be an acknowledgment of the claim here in suit, embracing a dozen items, eleven of which are outside of the twenty-five cents an acre, and include $1,237.92 for gathering descriptions of farm lines, $711.95 for extra crop survey — 150 — and expenses and $230 for wages and expenses of men in field, awaiting orders; also items for making maps, etc., of lands outside of the survey in question. The payment of McBride’s order could not constitute an acknowledgment of such, a claim. In Haines’s Est., 10 Pa. Dist. Rep. 677, it is field fiy tfiat eminent jurist, tfie late Judge Penrose, tfiat, wfiere tfiere was no mention of tfie amount due and no bills ever rendered, it proves nothing to show payments made on account while tfie statute was running. And in Huff v. Richardson, 19 Pa. 388, it is field tfiat, where plaintiff’s claim rests on accounts, tfie acknowledgment to avoid tfie statute must be of a fixed sum or tfie balance should admit of ready and certain ascertainment. “To take a debt out of tfie bar of tfie statute of limitations tfie identification of it must be made by tfie debtor at tfie time of tfie promise, or payment or act relied on. An identification by mere inference of tfie jury from other collateral matters is not sufficient”: Rosencrance v. Johnson, 191 Pa. 520, 533. “To remove tfie bar of the statute of limitations, tfiere must be a clear and definite acknowledgment of tfie debt and a specification of tfie amount due or a reference to something by which such amount can be definitely and certainly ascertained”: Patterson v. Neuer, 165 Pa. 66, 73; see also Simrell v. Miller, 169 Pa. 326; Ward v. Jack, Exr., 172 Pa. 417; Miller v. Bascfiore, 83 Pa. 356; Suter v. Sheeler, 22 Pa. 308. Tfie part payment upon which plaintiff relies must be plainly referable to tfie debt in suit: Burr v. Burr, 26 Pa. 284; Barclay’s App., 64 Pa. 69; Landis v. Roth, 109 Pa. 621; Chapman’s App., 122 Pa. 331; Barnes v. Pickett Hardware Co., 203 Pa. 570; Shaffer v. Shaffer, 41 Pa. 51; Wolfensberger v. Young, 47 Pa. 516; Marshall v. Brick, 16 Pa. Superior Ct. 530. Tfiere was nothing in tfie order given McBride, or in tfie payment thereof tfiat in any manner connected it with, tfie various items for which this suit was brought or any of them. It is not necessary to consider tfie other features of tfie case — 151 — The judgment is reversed and is here entered n. o. v. for the defendant.