Peters v. Rothermel

Opinion by Beaver, J., The action in the court below was upon a promissory note of the defendant, dated April 1, 1886, payable one year after date. The testimony of the plaintiff showed that the indorsements of the payment of interest prior to April 1,1894, were in the handwriting of Sarah Peters, the payee of the note. Subsequently to that time, namely, April 1, 1894, April 1, 1895, April 1,1896, indorsements of interest for one year each were in the handwriting of Benjamin Peters, the husband of Sarah Peters, who died January 9, 1897. It is objected on the part of the defendant that the payments of interest to Benjamin Peters and the indorsement by him does not bind the defendant, in so far as they toll the running of the statute, for the reason that Peters was a stranger to the note and the payments, even if made as indorsed, did not have that effect. • It appears from the evidence that Sarah Peters, who died intestate, left her' husband, Benjamin Peters, and at. least one [285] son to survive her. The husband had an interest in'the note, as one of the heirs of his wife, being entitled to a share of her personal estate. It seems' to us, therefore, that he was not a stranger to the note, although not the legal representative of the decedent, and that his indorsement of the payments of interest, if such payments were actually made at the times at which they purported to have been made by the indorsements upon the note, would bind the defendant and would toll the running of the statute: Keely v. Wright, 5 W. N. C. 241; Croman v. Stull, Admr., 119 Pa. 91. In the latter case it was said: “ The rule that the promise must be made to the plaintiff or his agent means nothing more, however, than it must be made to a party in interest.” It seems to us, therefore, that, whether the husband were entitled to the whole or only to a part of the note, he had such an interest as warranted his making the indorsements shown to be in his handwriting, and that the same, if properly proved, would bind the defendant, so as to toll the running of the statute. Another question, however, is raised by the defendant’s assignments of error, which is' more serious. David K. Peters, the administrator of the decedent, being called as a witness and his testimony having been admitted under objection, testified as follows: “ Q. Look at that note (handing it to witness) ; in whose handwriting are those indorsements — the last three? A. My father’s, Benjamin Peters. Q. Were you acquainted with the handwriting of Benjamin Peters ? A. Yes, sir. Q. Have you seen him write? A. Yes, sir, I have seen him write. Q. Who was Benjamin Peters ? A. My father.Q. What relation did he bear to Sarah Peters ? A. He was her husband.” The indorsements referred to were dated April 1, 1894, April 1, 1895 and April 1, 1896. Were payments of interest made at the several dates named and were the indorsements made at the several times at which they purported to have been made ? There was no evidence in regard to these facts and the court submitted the case to the jury as to the credibility of David K. Peters, saying: “ If you believe the testimony of David K. Peters — and there does not seem to be anything submitted in the case impeaching his credibility, in the judgment of the court — your verdict will be for the plaintiff for $1,000, principal and interest, $373.55, making a [286] total-of 11,373.55.” . This' instruction is assigned for error. Was it correct? It is to be remembered that the note, which was the basis of the action, fell due April 1, 1887. The first indorsement of interest in the handwriting of Benjamin Peters was April 1, 1894. The statutory period of limitation had, therefore, expired before the first indorsement was made. There is evidence, it is true, that certain indorsements upon the note were in the handwriting of Sarah Peters, the payee. What they were and when they were made, however, does not appear in the evidence, the only evidence upon that subject being that of David K. Peters who testified: “ Q. Were you acquainted with the handwriting of Sarah Peters? A. Yes, sir. Q. Have you seen her write ? A. Yes, sir, I have seen her write. Q. In whose handwriting are the indorsements prior to 1894 ? A. In my mother’s, Sarah Peters.” If the indorsements thus made were offered in evidence, it does not appear by the record, as printed. They are not included in the offer of the note and the indorsements of 1894, 1895 and 1896. It was perhaps assumed in the court below and by counsel here that the indorsements made by Sarah Peters postponed the time for the beginning of the running of the statute beyond the date of the maturity of the note. This may be a fact, but it does not appear in evidence, and we must, therefore, take the indorsements made by Benjamin Peters for just what they were worth. Having been made, therefore, after the statutory period had closed, the reason for their admission fails and it is doubtful whether, standing alone, they are even admissible in evidence. The principle upon which the indorsement of a payment on a promissory note by the holder thereof is admissible to toll the running of the statute of limitations is that it is against the interest of the party making it, but this is true only when the indorsement is made prior to the date at which the statute becomes a bar and, in order, therefore, to give it the effect which our decisions, contrary to those in England, have determined that it should have, it is necessary to show that the indorsement was made at the time at which it purports to have been made; otherwise, if made after the statute had become a bar, although dated before, it might be a merely self-serving declaration. [287] In Addams v. Seitzinger, 1 W. & S. 243, after discussing the grounds upon which such indorsements are admissible as evidence, Mr. Chief Justice Gibson says: “ But the rule, guarded as it was in England and as it still is here, allows not such a memorandum to go to the jury, unless it appears to have been made when the creditor had no motive to give a false credit, but when, on the contrary, he had the all-prevailing inducement of interest to avoid the appearance of it.; that is, when the period necessary to give effect to the statute or to raise a presumption of payment had not elapsed and, consequently, when to give a false credit would have been to throw so much away. With this qualification, such evidence cannot- operate injuriously; for it is not to be supposed that a creditor could so far mistake his interest as to sacrifice a part of it to save the residue, when no part of it was in danger. It is possible that a weak man might do so, but it is inconsistent with the ordinary course of human action.” ■ In Shaffer v. Shaffer, 41 Pa. 51, Mr. Justice Strong, who was of counsel in the case previously cited, says: “ Indorsements made by the promisee, before the statute has closed upon the right to maintain suit, are undoubtedly evidence of corresponding payments, to remove the bar of the statute, in this state, though no longer in England; but it has always been held that they are not evidence at all, unless proved to have been made while the statute was running: Addams v. Seitzinger, 1 W. & S. 243; Cremer’s Estate, 5 W. & S. 331. They are evidence made by a plaintiff for himself, and upon general principles would not be receivable at all. The exception is admitted, because indorsements by the plaintiff are declarations against his own interest, when made within six years. from the promise. When made afterwards, the reason for their admission entirely fails.” In Hart, Exr., v. Bucher, 182 Pa. 604, Mr. Justice Sterrett, in delivering the opinion of the court, says: “ For the purpose of rebutting the presumption of payment which had arisen from lapse of time, the plaintiff offered the following indorsement on the bond recited in the mortgage, under date of April 1, 1885, viz : 4 John Bucher paid the interest on the within bond up to April 1, 1885 ; ’ (signed) ‘ John Hart ’ .and attested by B. B. Flickinger. The attesting witness, Flickinger, was called [288] and testified to the genuineness of John Hart’s signature, but no offer was made to prove that the indorsement was actually written on the bond at the time it bears date. Without further evidence on the subject, the learned trial judge charged that the indorsed acknowledgment rebutted the presumption of payment arising from lapse of time, and directed the jury to render a verdict in favor of the plaintiff for the amount of his claim. In this we think there was error. If the evidence intended to rebut the presumption of payment was sufficient-to go to the jury on the question as to when the indorsement was actually made, it should have been submitted to them with proper instructions, instead of being withdrawn from their consideration by binding instructions to find for the plaintiff. But the evidence was insufficient to even justify submission of that question to the jury.” In view of the fact that in this case the time elapsing between the maturity of the note and the first indorsement made by Benjamin Peters was more than six years, and between the last indorsement made by him and the bringing of suit by the administrators of Sarah Peters was within one month of the completion of the statutory period of limitation, it was important that these several indorsements should have been shown to have been made at the dates at which they purported to have been made respectively. There is no evidence upon this subject and the mere identification of the handwriting of Benjamin Peters was not conclusive evidence of the fact and dates of payment, as thereby indicated. The fourth and fifth assignments of error, are therefore, sustained. The rule in Marsteller v. Marsteller, 93 Pa. 350, claimed by tbe appellee as being applicable to this case, does not apply, for the reason that a cause of action had accrued before the death of Sarah Peters. The rule in Marsteller is that the statute begins to run at the date suit may be commenced and, once begun, it is not stayed by a party’s death. If no action accrued prior to the death, none' accrues until grant of administration, and statute runs from such grant. The later cases cited by the appellee support the same rule but they have no application here for the reason already stated that the right of action was complete before the death of Sarah Peters. Judgment reversed, with a new venire.