Pollak v. Billing , 131 Ala. 519 ( 1901 )

TYSON, J.

This bill was filed by a simple contract creditor for discovery of assets under section 819 of the Code, and .to subject them to the payment of debts alleged to be due Poliak to complainant. — § 821 of Code. It is averred that respondent Poliak is indebted to complainant in the Eium of $20,000 or other large -sum by his bills of exchange and promissory notes and other accounts in a large amount which is due and unpaid; that the said Poliak has not visible property or means subject to legal process of value sufficient to pay complainant, and “that orator is informed and believes and upon such information and belief states that the said Ignatius Poilak has property, means or assets not accessible under legal process or an interest in property real or personal or money, or effects or dioses in action which are not accessible under legal process which are liable to the satisfaction of his debts to orator, but that the kind and description of such property and how it is held is kept concealed and hidden out and is unknown to orator and that a discovery of the same by defendants hereinafter named is necessary to enable orator to reach and subject the same to the satisfaction of said demands owing to orator by said Poilak.” The bill contains interrogatories addressed to Poilak and the other respondents for the discovery of said assets and prays for such decrees as may be necessary to subject such assets to the indebtedness of complainant; for a receiver and for an injunction to prevent Poilak from disposing of the assets pending a determination of the cause.

In Cook v. Schmidt & Zeigler, 100 Ala. 582, speaking of the right of a simple contract creditor to maintain a bill under the statute, it was said: “The constitutionality oif tlie act and the right of a creditor to relief under its provisions has been thoroughly considered by this court and should be regarded as 'settled law in this State.” We see no ground for differentiating this case from the others where the jurisdiction of the court has been repeatedly sustained.

The bill sufficiently avers the insufficiency of visible asisets for the payment of the indebtedness, and the existence of other assets not subject to legal process which are kept concealed or hidden out.

It is not necessary that the bill should show any fraudulent conveyance or attempt to fraudulently transfer property. It is sufficient if it avers the insufficiency of visible assets subject to legal process and the existence of assets which are concealed and hidden out. This the bill under consideration does. — Sweetzer v. Buchanan, 94, Ala. 574; Lawson v. Warren, 89 Ala. 584; Sorrell v. Vance, 102 Ala. 207.

The bill was also demurred to upon the ground that it is not a bill of discovery because answer under oath is waived as to all of it except the interrogatories incorporated therein. These interrogatories are directed to the ascertainment of the character and location of the assets which it avers the debtor has hidden out and concealed. This is the purpose of the discovery under the statute and answer under oath as to the character, location and interest of Poliak in the assets being inquired as contemplated by it (the statute), it cannot be said that the bill is not a bill of discovery thereunder.

The defense of the statute of limitations of six years was interposed by demurrer and by pleas. The bill as amended to which the demurrer and pleas were interposed contained the following agreement signed by Poliak of date July 12th, 1899: “Whereas I, Ignatius Poliak of said county and State, am justly indebted to Josiah Morris & Co. in several and divers bills of exchange and promissory notes as drawer, acceptor, indorser or maker, and desire to extend my liability thereon and therefor so that the statute of limitations will not bar the same, and in consideration that said Josiah Morris & Co. do not presently bring suit on my said oh-ligation» to them, I, the said Ignatius Poliak, do hereby acknowledge my obligation on all of said notes and bills as shown by the same and in the manner shown by the ■same, and that any indebtedness as shown thereby is just, correct, due and unpaid and for such consideration aforesaid, I hereby expressly and unequivocally renew such obligations and promise to pay the same, this promise and agreement being intended to renew and extend my obligations on such paper to the extent and as fully as if I had renewed each of such papers. And I also hereby waive my right to he discharged from any obligation on any of said notes or bills as indorsed or accepted by reason of any failure to have them protested at the time they fall due, and all protests on them are hereby waived.”

The essentials of a promise to remove the bar of the statute of limitations is thus stated in Chapman v. Barnes, 93 Ala. 435: “There must be a clear and definite acknowledgment of the debt, a specification of the amount due or a reference to something by which such amount can be definitely and certainly ascertained and an unequivocal promise to pay.” The agreement above quoted does not specify any debts, other than all hills of exchange and promissory notes upon which Poliak was then justly indebted to Josiah Morris & Co. He acknowledges his obligation on “all of said notes and hills as shown by the same and in the manner shown by the same;” that his indebtedness as shown thereby is just and unpaid, and he “unequivocally” promises to pay them. It is manifest that by embracing all the bills of exchange and promissory notes outstanding in the hands of complainant on the 12th of July, 1899, upon which Poliak was acceptor, indorser or maker, the agreement furnishes the means by whiqh the amount of the indebtedness covered by it could be definitely and certainly ascertained. This would appear upon the face of the hills and notes outstanding. The agreement was also an acknowledgment of the amounts of the bills and notes then outstanding as due and an unequivocal promise to pay the same. If the bill of complaint 'did not shew that the notes and bills of exchange sought to be collected were outstanding at tlie date of the agreement the demurrer and pleas interposing the defense of the statute, of limitations necessarily do. The demurrer involves the assertion that the bill shows that the cause of action upon the notes and bills of exchange accrued six years prior to the commencement of this suit, which was on the 31st day of May, 1901. If the bill of complaint does not show that the cause of action upon them accrued six. years before the commencement of the suit, the demurrer is bad; if, on the other hand, the bill does show such fact, the demurrer is equally bad for the reason that the bill in such case would also show that the notes and bills of exchange were outstanding on the 12th day of July, 1899, the date of the agreement. The same may be said of the pleas. They aver that the obligation sued upon accrued six years prior to' the commencement of the suit. If this be so, the bills of exchange and notes were necessarily outstanding at the date of the agreement, which was not two years before this bill was filed. This fact is all that is necessary for the definite ascertainment of the amount of the indebtedness as to which the statute of limitations was waived.

In plea numbered three it is averred that the bills of exchange and notes were not covered by the waiver of the statute contained in the agreement because they were not then subsisting obligations by reason of failure to give Poliak notice of non-payment when they fell due. This construction of the agreement of the waiver is too narrow. The agreement did not leave the question open as to whether Poliak was justly liable upon any of the bills and notes then outstanding or whether he had a defense thereto for future ascertainment. It was an acknowledgment that he was justly indebted upon all of them “as shown by the same and in the manner shown by the same.” That this was the intention of the parties is further manifest from the fact that Poliak in and by the agreement waived his right to be discharged from his obligation on any of said notes or bills by reason of failure to have them protested at the time they fell due. The fact that Poliak was not then liable upon some of the bills and notes outstanding was in the minds of the parties, and tlie intention is clear that the agreement was to cover them and all others.

Plea two asserts that the waiver of protest was without consideration, and being made after the bill and notes had become due was of no effect. If a consideration were necessary to sustain a promise to, pay after failure to give notice of non-payment (Bolling v. McKenzie, 89 Ala. 470), the agreement furnishes such consideration for the promise. It shows that the waiver of failure to protest and give notice, as well as the the waiver of the bar of the statute of limitations was in consideration of the agreement of Josiali Morris & Co. not to presently sue upon Poliak’s obligations, upon some of which, we may add, he was liable as maker and not entitled to notice.

Affirmed.