Keener v. Zartman

Opinion, Me. Justice Geeen: The claim of the plaintiff in this case is exceedingly old and stale. It is founded upon an allegation that money was paid by the plaintiff’s intestate for the defendant’s intestate, for wages owing by the latter, and that boarding was furnished to the men who did the work, as far back as the year 1864, which was twenty-three years before the present action was brought. A further claim of the same character, in the year 1873, is included, and that was fourteen years prior to the suit. We know nothing of the items of these claims, as neither the appellant nor the appellee has printed the book entries which are the foundation of the action. But it is a fact not disputed that, during all the period of the account, the plaintiff’s intestate was the tenant of the defendant’s intestate, having the means of satisfaction in his hands every yrear, by applying the landlord’s share of the grain to the extinguishment of the debt. It seems incredible that such extraordinary laches should transpire between men so situated, especially as the plaintiff’s intestate was a tenant only, and his debtor was his landlord who was the owner of a large amount of real estate. No action was brought in the lifetime of either party, though three years [187] elapsed before the death of either, after the promise set up to bar the statute was alleged to have been made. It needs hardly to be said that in such highly exceptional circumstances the evidence in support of the alleged acknowledgment and promise should be of the most satisfactory character. Upon reading the testimony we find that there was but one witness who gave any evidence as to any declarations of the defendant’s intestate made within six years prior to the commencement of the action. His name is John Pannebecker, and the whole of his testimony on this subject is as follows: “ Q. Did you hear any talk between him (David Zartman) and Emanuel Keener? A. Yes, sir. Q. About a debt? A. Yes, sir. Q. State what it was? Tell us what was said between them ? A. Emanuel Keener asked him to pay for his debt about hauling lumber and boarding the men, and for the building of the barn and the house; and Mr. Zartman said that he knew that he owed him, and that he will see that he will pay it; that the boys, Davy and Pete, had got the best farms, and. they must pay it. . .'. . Q. What, then, did the old man say? A. The old man then said that he knows that he owes him, and that he wants to see that he will get his pay from the two boys ; David and Peter have got the best farms, and they must pay it.” This is the whole of the testimony of the witness upon the direct question as to what was actually said by David Zartman, deceased. It is a perfectly familiar and well-settled principle in the law of this state that, in order to take a debt out of the statute, an acknowledgment must be clear, distinct, and unequivocal, and it must be consistent with a promise to pay: Palmer v. Gillespie, 95 Pa. 340; Wesner v. Stein, 97 Pa. 322; Lawson v. McCartney, 104 Pa. 356; Shaeffer v. Hoffman, 113 Pa. 1. In Palmer v. Gillespie we said: “ A clear, distinct, and unequivocal acknowledgment of a debt is sufficient to take a case out of the statute. It must be an admission consistent with a promise to pay.....There must not be uncertainty as to the particular debt to which the admission applies. It must be so distinct as to remove hesitation as to the debtor’s meaning.” The same language was repeated in Wesner v. Stein. In Lawson v. McCartney, the defendant himself testified that he had [188] said to the plaintiff: “ I wished I could pajr him all I owed him. .....In the first conversation he wanted me to promise to pay him. He may have thought I would. I said I was sorry I could not pay him all I owed him. I admitted I owed it. .....I told him if he would let this go on I would do the best I could to pay him.....He did not show me the note. I knew it. I never disputed it.” On the question whether these admissions were sufficient to toll the statute, we said, Mercur, C. J.: “ We think they are not. When a claim to recover a debt barred by the statute rests on the admission of the indebtedness, the acknowledgment thereof must be unqualified. It must be consistent with a promise to pay on demand. It must not be accompanied by such other expressions as indicate a willingness to pay at some future time: Kensington Bank v. Patton, 14 Pa. 479. No implication less than this will toll the statute. The language should be so clear as to preclude hesitation as to the debtor’s meaning.” In Montgomery v. Cunningham, 104 Pa. 349, we said: “ The acknowledgment must be clear, distinct, and unequivocal. It must be such that a promise is clearly implied.” In this case a part of the defendant’s declaration was, “ He said he would pay me, and make it all right.” In Shaeffer v. Hoffman, 113 Pa. 1, the debtor,' acknowledging the execution of the note, saying: “ It must be fixed. I and W. will have to pay it,” was held not to be such an acknowledgment of the debt as implies a promise that he will pay it, and does not, therefore, toll the statute. Mr. Justice Paxson, in delivering the opinion, said: “ It is not such an acknowledgment of the debt from which an unequivocal promise to pay can be inferred. It does not prove an express promise nor an implied one.....The expressions that it must be ‘ fixed ’ and that he ‘ and William would have to pay it,’ are equivocal. In the one instance it is not the equivalent of ‘ pay; ’ in the other, it involves another person, and may refer to a supposed liability, rather than an intention to pay. .....A statement by the defendant that he and some one else would have to fix a note, or would have to pay it, contains nothing from which an implied pror&ise that the defendant alone would pay [follows?].” If we recur to the testimony in the present case, we find nothing from which it can be implied that David Zartman [189] alone intended to pay the debt. The witness said that “ Mr. Zartman said that he knew that he owed him, and that he will see that he will pay it; that the boys, Davy and Pete, had got the best farms, and they must pay it.” And the same witness, repeating the same conversation, said: “The old man then said that he knows that he owes him that, and he wants to see that he will get his pay from the two boys; David and Peter have got the best farms, and they must pay it.” The only thing that is unequivocal, in reality, in all this, is that the old man intended that the two boys should pay the debt. It cannot be said of this testimony that it contained a clear, distinct, and unequivocal acknowledgment .of the debt, consistent with a promise that he, David Zartman, alone, would pay or intended to pay the debt at any time. On the contrary, such an inference is precluded by- his saying that the boys must pay it, or that he would see that they would pay it. Of course, the language is highly equivocal as to any intent of his to pay the debt himself. Wé are of opinion that the testimony of the witness was entirely insufficient to toll the statute, and therefore sustain the seventh assignment. The sixth assignment is sustained, and also the second, because the conversation testified to by the witness Matthews occurred in the year 1880, which was more than six years before suit brought. It should not have been admitted, and, having been received in evidence, it was entitled to no consideration, as the basis of a right to recover. The first assignment is not sustained, as the witness, though a party, and interested, was only examined to prove book entries, and for that purpose he was competent. The third assignment is not sustained, because the entry in David Zartman’s book was not such a book -entry as could be given in evidence. We think the witness Peter Zartman was not competent to testify for the defendant, for this reason: He was the alienee, by mere gift, of one of his father’s farms. The debt in suit, if a debt at all, was a subsisting debt at the time of the alienation, due by his father to the plaintiff’s intestate. Hence the conveyance of the land would.be a voluntary conveyance, and therefore a fraud upon David Zartman’s creditors. That being so, the land could be followed in Peter Zartman’s hands for [190] the satisfaction of the plaintiff’s claim, if a judgment were recovered in the present action. If there were personal estate of David Zartman in the hands of his administrator sufficient for the payment of all his debts, the land of the witness could not be followed for the debt of David Zartman, and in that event the witness, 'having assigned all his interest in the estate of David Zartman, would be disinterested, and would be competent to testify. But it is alleged by the appellee, and not denied by the appellant, that David Zartman left no personal estate, and that the administrator’s account showed a balance of $83.69 due the accountant. If this be so, the witness Peter Zartman would be interested in preventing a recovery in this action, and of course the assignment of his interest in his father’s estate would have no effect to divest that interest. His interest would be adverse to that of the plaintiff’s intestate, and he would be disqualified under clause (e) of the fifth section of the act of 1887, P. L. 159; and he would not be qualified under the sixth section of the act, because his own interest in his own land is not covered by the assignment, and consequently still remains. We think the fourth and fifth assignments are not sustained. Judgment reversed, and venire de novo awarded.