Miles v. Moodie

The opinion of the Court was delivered by

The plaintiff declared on a general indebitatus assumpsit and quantum meruit, for work, labour, and services performed for the defendant, and gave evidence of a performance of the work, &c. and of a promise made by the defendant to pay him a certain sum per day. The Court below were of opinion, that, upon this evidence, the plaintiff was entitled to recover. It is objected, that the contract was special, and ought to have been specially set forth.in the declaration. This objection was fully considered in the case of Kelly v. Foster, 2 Binn. 4, where this Court decided, that after the plaintiff had performed the stipulated services, he might recover on a general indebitatus assumpsit, although the defendant’s promise, was, to pay a sum certain. I, therefore, consider the law as settled.

Another exception is taken to the Court’s opinion, concerning the statute of limitations, which was pleaded by the defendant. Parol evidence was -given of the following words, spoken by the defendant, at the time the writ in this suit was served upon him. “ I will write to Mr. Watts to attend to “ the business; Moodie did not do the business accurately.”

The Court charged the jury, “ that if they should infer “ from the evidence, that the defendant made even a very “ slight acknowledgment of the debt, not inconsistent with a “promise to pay, they should then consider the statute as no “ bar to the plaintiff’s claim; but if such was not their infe- “ rence from the evidence, the statute was conclusive against “ the demand of the plaintiff.” The defendant’s objection to this charge, is, that the operation of the statute is matter of *214law, and ought not to have been left to (ht jury ; and in sup* ' port of this objection, the decision of this Court, in the case of Brown v. Campbell, is relied on. (Chambersburg, October, 1814.) That a slight acknowledgment of a debt, is sufficient to take the case out of the statute, has been often decided.' Were it res nova, I should probably not go so far as the law has been carried on this point. But, without overturning what has been established, I cannot say, that the Court below erred, in laying down the law, that a slight acknowledgment of the debt, was sufficient evidence of a promise to pay, unless the defendant, at the same time declared, that he would not pay, or something tantamount. Without enlarging on this subject, I will refer to the cases, of Cowan v. M'Gowan, (Wallace's Rep. 66, in Circuit Court of United States,) and Wistar's executors v. Moor, (5 Binn. 573,) in both of which, the law was fully considered.

As to leaving this matter to the jury, it does not appear, that any thing more was left to them, than what it was their right to decide. Whether any, and what words were spoken by the defendant, was matter of fact, and what, upon the whole, was the meaning of those words, was a question, in which was involved so much fact, that it was properly left to the jury. The expressions, “ I will write to Mr. Watts to attend to the business,” are certainly very equivocal. I do not see how the Court could undertake to construe them. Something extrinsic must be resorted to. Mr. Watts might attend to the business, as an attorney at law, or as a person interested in the work done by the plaintiff. I have looked into the case of Brown v. Campbell. It was very different from the present. The defendant, in that case, had written a letter, from which, the Court below told the jury, they might, if they thought fit, infer a promise which would avoid the statute of limitations. That letter was part of the record, and as it did not appear, that there was any extrinsic circumstance, to be taken into consideration, its import was simply a matter of construction, belonging properly to the Court. The case of Brown v. Campbell then, so far as it has any bearing on the present case, is in favour of the plaintiff.

Upon the whole, T am of opinion, that the judgment of the Court of Common Pleas should be affirmed.

Judgment affirmed.