Linderman v. Pomeroy

Opinion, Mr. Justice Mitchell: We gather from the opinion of the learned judge below, on the motion for a new trial, that his matured view was that there was no sufficient evidence to toll the bar of the statute, and that the jury should have been directed to find for the defendant. He, however, allowed the verdict to stand, on the ground that the case, whichever way decided, would probably come to this court for final determination, and that if the judgment he entered was wrong we could set it right without the expense of another trial. We can hardly commend the practice of entering judgment against the judge’s own view of the law, and putting the additional labor upon us, for the mere purpose of saving the plaintiff’s pocket. Litigation is too cheap in this commonwealth, for courts to be tender about calling upon those who indulge in it to pay for it. But the careful review of the testimony by the learned judge has greatly facilitated our labor, and saves us the necessity for doing more than applying the law to the case as stated by him. The presumption was strongly against the plaintiff. He was the original debtor, and by his version he had overpaid, not by one erroneous payment, but by several. He waited eighteen years, and then made his claim upon the alleged mistake. According to plaintiff’s own testimony, appellant denied that there was any mistake; insisted that the plaintiff still owed him a small balance; that he knew it was right, and there was no necessity to re-figure it; refused to name a man to go over the calculations; and, when finally told that plaintiff would have it done any way, and by Hoffman, said he would as lief Hoffman would do it as any one. Then plaintiff, according to his own account, said: “ If Hoffman does this, if I owe you anything I will pay you, and if you owe me anything you will pay me. ‘Yes, sir;’ said he, (appellant.) ‘If you owe me anything you must pay me, and if 1 owe you I will pay you.’ ” It is on this promise, if at all, that plaintiff must sustain his recovery. It is clear, in the first place, that this was not an agreement [178] of submission to arbitration, or compromise of disputed rights. Defendant did not admit that plaintiff had ever had any claim, and, if he had, it was barred three times over. There was no element of reference or compromise in it, for Hoffman was not to do anything for defendant, to hear any evidence on his behalf, or to take any action that would bind him. The most that can be made out of defendant’s language is an impatient, indifferent, acquiescence that, if a re-calculation was to be made, he would as lief Hoffman should do it as any one, but without the slightest assent to be bound by the result. As a promise to pay, it was equally unavailing, for it was clearly conditional. There was no acknowledgment of a debt, but, on the contrary, a strenuous and reiterated denial. Nor was there any such acknowledgment after Hoffman’s calculation was submitted to defendant. What he then said was, at most, an assent to the correctness of Hoffman’s figures, but coupled at the same time with a reiteration of the denial of any debt, and an explanation that Hoffman was mistaken, because he had counted a receipt as for cash when it was only for a note. On plaintiff’s own account, there never was any admission by defendant of a debt, and such promise as there was did not name any certain amount, and was merely a conditional promise to pay, “ if I owe you.” Under all our cases, this is not sufficient. In Emerson v. Miller, 27 Pa. 278, the promise was, “he would fix it, or settle it;” in Weaver v. Weaver, 54 Pa. 152, and McClelland v. West, 59 Pa. 487, “I agree to settle with him for above balance,” and “I agree to settle this bill;” in Harbold v. Kuntz, 16 Pa. 210, “would settle and pay all he owed him;” in Miller v. Baschore, 83 Pa. 356, “After he is paid, I will pay you all I owe you; ” in Landis v. Roth, 109 Pa. 621, “We will pay you every dollar,” and, “Yes, we will pay you;” and in Lowrey v. Robinson, 141 Pa. 189, “I will pay him when I get ready.” In each case, the words used were held insufficient to toll the bar of the statute, although in several of them the words quoted were in writing, and might therefore be considered as intended for a more formal and definite acknowledgment than if they had been used in mere conversation. The present case is no stronger than any of those cited, and not nearly so strong as some of them. It must go into the same class. Judgment reversed.