
    Grosch v. Trexler, Appellant.
    
      Statute of limitations — Payment to bar claim.
    
    A claim for work and labor done is hot barred by the statute of limitations if it appears that a payment on account of the claim had been made within the six years.
    
      Evidence — Booh of accounts — Time booh.
    
    In an action for work and labor done where oral evidence has been presented by the plaintiff to sustain his claim, a time book is admissible to corroborate such testimony, which shows, on its face that it was fairly kept as a contemporaneous record of daily work.
    In such a case where the defendant claims and produces checks to show that the plaintiff had been paidl in full, the plaintiff may use memorandum slips to refresh his memory in order to show that the checks were not given to pay for the work and labor for which suit was brought but for the payment of supplies, and for other labor than that involved in the suit.
    Argued Dec. 7, 1916.
    Appeal, No. 235, Oct. T., 1916, by defendant, from judgment of C. P. Lehigh Co., Sept. T., 1915, No. 63, on verdict for plaintiff in case of John A. Grosch v. D. D: Trexler.
    Before Oready, P. J., Porter, Henderson, Kepi-iart, Trexler and Williams, JJ.
    Affirmed.
    Assumpsit for work and labor. Before Groman, P. J.
    At the trial the court admitted under objection and exception a time book offered to corroborate oral testimony as to work and labor done. (3)
    The defendant offered in evidence various checks which would have liquidated.plaintiff’s bill for work and labor. Under objection and exception the plaintiff was permitted to use memorandum slips to refresh his memory in order to show that the checks were not given for the work and labor for which suit was brought, but for the payment of supplies and for other labor than that involved in the suit. (4)
    Defendant presented this point:
    1. The plaintiff cannot recover for services performed longer than six years prior to the issuing' of the writ. Answer. Refused. (6)
    Verdict and judgment for plaintiff for $386.25. Defendant appealed.
    
      Errors assigned, among others, were (3, 4) rulings on evidence quoting the bill of exceptions and (6) refusal of point as above.
    
      
      Jacob Erdman, with him Samuel J. Kistler, for appellant.
    
      Adrian H. Jones, with him George A. Miller, for appellee.
    March 16, 1917:
   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 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.  