
    Miles against Moodie.
    
      Monday, May 26.
    An agreexnent by the defendant to pay ihe plaintiff a certain sum per diem for work, is good evidence in indebitatus assumpsit, for work, labour, and services.
    The defendant when the writ was served upon him, said, u I will write to Mr. Watts to attend to the business; Moodie did not do the business accurately.” Held, that this was such art acknowledgment as took the case out of the statute of limitations.
    In Error.
    THIS was a writ of error to the Common Pleas of Dauphin county, in a suit brought there by Moodie against Miles.
    
    The declaration was in indebitatus assumpsit and quantum meruit, for work, labour, and services. The Court below charged the jury, that evidence of a promise made by the defendant, to pay to the plaintiff a certain sum per diem, was legal evidence under this declaration. The defendant excepted to this part of the charge. The suit was brought to June Term, 1804, upon a cause of action originating in the year 1797. Evidence was given, that when the sheriff served the writ in this suit upon the defendant, the latter said to him, “ I will write to Mr. Watts to attend to the business; “ Moodie did not do the business accurately.” The Court below charged the jury, that “a promise to pay á-iiebt, takes “ it out of the statute of limitations. So does an acknow- “ ledgment of a debt; for from an acknowledgment a pro- “ mise to pay is implied ; a very slight acknowledgment is “ sufficient. If a defendant, at the time of making the ac- “ knowledgment, says, that he has paid the debt, or says “ any thing in connexion with the acknowledgment, which is “ inconsistent with a promise to pay, the statute will never- “ theless operate; the debt is not thereby revived. If from 11 the evidence the jury infer, that the defendant made even “ a verv slight acknowledgment of the debt, not inconsistent “ with a promise to pay, then they will consider the statute “ as no bar to the plaintiffs. If such be not their inference “ from the evidence, the statute is conclusive against the de- “ mand of the plaintiff.”
    The defendant also excepted to this part of the charge. The jury found a verdict for the plaintiff.
    
      Fisher and Duncan, for the plaintiff in error.
    1. Evidence of a per diem allowance agreed on by the parties, is not good under the general counts for work and labour.
    2. The statute of limitations barred the'plaintiff’s action. Saying, that the work had been done inaccurately was no acknowledgment. It was a denial of the justice of the claim. No case has gone so far as to hold such words an acknowledgment. In Smith v. Freel, the defendant admitted the note, but said he had paid it. This was held not to take the case out of the statute. In Lacost v. Briggs,
      
       it is said by the Lord Chancellor, that there must be a direct acknowledgment to have that effect.
    3. Whether the evidence takes the case out of the statute, is matter of law, and should not have been left to the jury. In Brown v. Campbell,
      
       this Court held it to be error in the Judge below, to leave it to the jury to decide that point.
    
      Elder and Hopkins, contra.
    1. The case of Kelly v. Foster,
      
       settles the principle, that, although before a contract is executed, it may be necessary to state it exactly as it is, yet, when it is executed, a general indebitatus assumpsit is sufficient. The latter is our case ; and the question must be considered as settled.
    2. A slight acknowledgment of a debt is sufficient to take it out of the statute. 5 Burr. 2630. 1 Binn. 212. In Cobham v. Mosely,  saying “ I will not pay it; Rosewell ought "to pay it; I will speak to him about it;” was held to avoid the statute. So “ I will settle with him.” Hayward, 18. In Cowan v. M'Gowan,
      
       it was held, that bare evidence of an acknowledgment of a debt, within six years, without any evidence of a promise or intent to pay, avoids the statute. Here Miles admitted, by his acknowledgment, that “ Moodie had a right to something, but questioned the quantum. This amounted to a promise to pay as much as the services were worth.
    3. The Judge left to the jury the meaning of the words used by the defendant. This was matter of fact, and proper for them to determine. The meaning depended on extrinsic circumstances. In Brown v. Campbell,
      
       it depended on the construction of written evidence.
    
      
      
         Addison’s Rep. 291.
    
    
      
      
         3 Atk. 107.
      
    
    
      
       2 Binn. 4.
      
    
    
      
      2 Hayward, 6.
    
    
      
      
         Wallace’s Rep. Circ. Co. United States, 66.
    
    
      
       1 Serg. & Rawle, 176.
    
    
      
       1 Serg. & Rowle, 176.
    
   The opinion of the Court was delivered by

Tilghman C. J.

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 law, 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.  