Grosch v. Trexler

Opinion by Kephart, J., Plaintiff sued to recover on a contract for proving coal on a tract of land in which the defendant was interested.' The defendant set up the plea of the statute of limitations, which was met by proof that a payment on account of the claim had been made within six years of the time suit was instituted. The major portion of the claim was for services prior to the period of payment, and without the six years, but a payment within six years would toll the running of the statute. There can be no more unequivocal acknowledgment of a present existing debt than payment on account of it, and according to all authorities this is all that is required to take the case out of the statute of limitations: Tyers v. Kuhn, 52 Pa. Superior Ct. 24; Barclay’s App., 64 Pa. 69. Oral evidence had been given by the plaintiff and his two sons to sustain their claim. A time book was then offered in evidence to corroborate this testimony. It was shown that the entries therein were made daily at the time the transaction noted took place. The rate of pay and the total amount charged were correctly set forth. Though this book was not what might be technically known in bookkeeping as a book of original entry, it did contain, in substantial form, a complete record of the business relations between these parties. It was the only book appellant kept, and an inspection of it would show whether it was fairly kept as a contemporaneous record of daily work. It was substantially a book of original entries as between these parties, and certainly was evidence to corroborate other evidence establishing the claim in litigation. The book was then admissible, if for nothing more, than with the same effect as the time slips in [488] Mellott v. Mellott, 55 Pa. Superior Ct. 614, and Hupp Machine, Etc., Co. v. Loux Sons, in an opinion just handed down by this court.- The objection to the use of memorandum slips to refresh the recollection of the witnesses in testifying as to the money paid by the plaintiff for the defendant on account of materials purchased, is without merit. This evidence was brought out by the defendant’s introduction of checks given to the plaintiff, which would have liquidated his bill for services. It was necessary to explain that transaction. The evidence was entirely competent for this purpose, and could not be considered a variance from the pleadings. While the charge of the court was not as full as it might have been on the law of the statute of limitations in its application to the facts in the case, we think the defendant suffered no substantial harm. A request should have been made for a more specific instruction if desired. The assignments of error are overruled and the judgment is affirmed.