Griel & Bro. v. Solomon , 82 Ala. 85 ( 1886 )

SOMERVILLE, J.

— The suit is one on the common counts, brought by the plaintiffs against the defendant, Solomon, who is a discharged bankrupt, and pleads his discharge as a defense to the action. The main points of controversy arise on the alleged promises of the defendant to pay the debt, after the adjudication of bankruptcy, and before the discharge, and the character of the promise required to revive a discharged debt.

1. It was proposed by the plaintiffs to prove, that the defendant promised to pay the debt sued on, during the time elapsing between the date of his adjudication as a bankrupt and the date of his discharge. The plaintiffs’ replication alleges a new promise, made since the filing of the bankrupt’s petition. On objection taken to this evidence by the defendant, it was excluded from admission to the jury. The court, in our judgment, erred in this ruling. The adjudication of a debtor’s bankruptcy is the pivotal period of all bankrupt proceedings, from which flow all of his disabilities, as well as the attendant rights of creditors conferred by the law, — being, as it is, a judicial ascertainment of the fact that an act of bankruptcy was committed at some antecedent period, which is fixed, by relation, at the commencement of the bankrupt proceedings, which is the filing of the petition. The bankrupt is regarded as civiliter mortuus, as to all previous dischargeable debts and liabilities, from the date of such adjudication, so long as it continues unrevoked by the court of bankruptcy in which the proceedings originated.— Gayle v. Randall, 71 Ala. 469. Hence, it is now settled by the great weight of authority, with comparatively few decisions to the contrary, that an express promise to pay a debt, made by a bankrupt before Ms discharge, but c^fter his adjudication, is just as effective to revive the debt against him, and to wraive his expected discharge, as would a promise made after obtaining his certificate of discharge. Mr. Bump says : “ There is no distinction between a promise made after tke filing of the petition, but before the certificate, and one made after it. Both are equally binding, the only consideration being the old debt.” — Bump on Bankruptcy (8th ed.), p. 746. Under former bankrupt laws, a distinction was taken between promises made after the adjudication of bankruptcy, and those made after the filing of the petition ; and it was held that a new promise, to overcome the effect of a discharge, must appear to have been made after the party was decreed to be a bankrupt— or, in other words, after the adjudication. — Hilliard on Bankruptcy & Insolvency, p. 262, § 46. Under the law of 1867, there is no difference, practically, between the date of the fiat, or adjudication, and the date of the petition; because the first, as we have before said, extended by relation back to the latter date, as does also the discharge when duly obtained. In support of the view contended for by appellants’ counsel, and announced by Mr. Bump in the extract above quoted, we need only refer to the following authorities: Knapp v. Hoyt, 57 Iowa, 591; s. c., 42 Amer. Rep. 59; Fraley v. Kelly, 67 N. C. 78; Hornthal v. McRae, 67 N. C. 21; Corliss v. Shepherd, 28 Miss. 550; Otis v. Gazelin, 31 Me. 567; Roberts v. Morgan, 2 Esp. 736, and other authorities on the brief of appellants’ counsel.

2. We consider next the nature of the new promise, which will revive a debt discharged by bankruptcy, or, what is the same in legal effect, will operate to waive the discharge of the bankrupt. In Wolffe v. Eberlein, 74 Ala. 99 (s. c., 49 Amer. Rep. 809), we discussed at length the effect of such promise in its relation to the plea of bankruptcy, and the rules of pleading on the subject, to which we need add nothing further. Speaking of the discharged debt, we there said: “ The old debt has become extinguished by operation of law, and no longer exists. But the moral obligation to pay still exists, and this, coupled with the antecedent valuable consideration, is sufficient to support a new promise, if clear, distinct, and unequivocal in its nature.” An implied promise is insufficient. It must be express, thus differing from the promise required at common law to take a debt out of the operation of the statuté of limitations. It must be clear, distinct, and unequivocal, such as to indicate on the part of the debtor “ a clear intention to bind himself to the payment of the debt.” Bo, partial payments on a discharged debt are insufficient evidence of a new promise to pay the residue. — Allen v. Ferguson, 18 Wall. 1; Dearing v. Moffitt, 6 Ala. 776; Evans v. Carey, 29 Ala. 99; Bump on Bankruptcy (8th ed.), 744; Hilliard on Bankruptcy, 265, § 53.

3. Such a promise may be either absolute, or it may be conditional. But, if dependent on a condition or contingency, this fact must be stated by the pleader ; and it must be averred and proved that the condition has been performed, or the contingency has happened. — Branch Bank v. Boykin, 9 Ala. 320; Dearing v. Moffitt, supra; Allen v. Ferguson, supra; Maxim v. Morse, 8 Mass. 127.

4. A promise to pay so soon as the bankrupt is able, is a valid condition, not void for uncertainty, and is so held generally by the authorities.— Taylor v. Sneed, 4 Ala. 352; Sherman v. Hobart, 26 Vt. 60; Bump on Bank. (8th ed.), 745-746, and cases cited; Dearing v. Moffitt, 6 Ala. 776, and cases cited. But, to be available, the promise must be averred-in proper form, and satisfactory proof adduced of the defendant’s ability to pay — that is, of the fact that he has sufficient property or means to pay. — Mason v. Hughart, 9 B. Monroe, 480; Hilliard on Bankruptcy, 266, § 55. The plaintiffs failed to aver, in their replication, any but an unconditional promise to pay.

It is easy to test the correctness of the court’s rulings on the points covered by the foregoing principles, without examination of the various charges in detail.

5. The court did not err in excluding the statement made by the witness Jacob Griel, one of the plaintiffs in the action, that, at the time the account sued on was contracted, the plaintiffs knew that the defendant was “ in a shaky condition ; and that the matter was discussed between him and the defendant, and that defendant said to him that it mattered not what might happen to him (defendant), he luould never let the plaintiffs lose anything by him.” The evidence may tend to show that the defendant regarded the debt sued on as an honorary debt; but it could not be more relevant than reiterated verbal promises to pay, and such promises, made before the filing of the petition, would be inadmissible. The case of Reed v. Frederick, 8 Gray, 230, seems to be an authority directly in point, against the admission of the evidence offered. — Hilliard on Bank. 266, § 54.

6. The fact that the plaintiffs proved the debt against the estate of the bankrupt, was immaterial, and irrelevant to any issue in the present suit, unless some payment on the claim was made by way of dividend from such estate. And being immaterial, no predicate could be laid by the answer of the witness touching it, for impeaching him by contradiction.

7. We can see no reason why the plaintiffs’ motion was refused, asking permission to amend his complaint, by striking out the middle initial of the defendant’s name. While a variance, as to a middle name, may not be sufficiently material to sustain a plea of abatement for misnomer, under our rulings ; yet, in the event of a subsequent suit on the judgment, a difference in the middle name might enhance the difficulty of proving the identity of the party to the judgment with the one alleged to owe the judgment debt.

The objection taken to the admission in evidence of the papers connected with the suit of Dunham against Solomon, in the Circuit Court of the United States, was properly overruled. That suit was a general creditors’ bill, and all persons became parties to it who appeared and claimed their pro reda share of the dividends derived from the assets of the defendant. Taken in connection with the other evidence found in the record, these papers and exhibits tended to show a payment of a dividend, distributed in that suit, something over one hundred dollars on the plaintiffs’ claim, on June 14th, 1878, which was admissible under the plea of payment interposed by the defendant. The evidence tends to prove that the attorney who collected this sum was employed by one Wolffe, and that the latter may have been acting in the matter as the agent of the plaintiffs. It may be, as contended, that the amount of three hundred and fifty-five 40-100 dollars, paid by Wolffe to plaintiffs in October, 1878, included this other sum, as the evidence tends to show; but the truth of this was a matter for the determination of the jury.

The judgment is reversed, and the cause remanded.