Sampson v. Curtis , 39 Me. 398 ( 1855 )

Appleton, J.

— A bankrupt, though discharged, is under a moral obligation to pay his debts, notwithstanding they may be barred by his certificate. This moral obligation has been deemed a sufficient consideration for a new promise after a discharge has been obtained. Corliss v. Shepherd, 28 Maine, 550; Flemings v. Hayne, 1 Stark. 370.

There was evidence tending to show, that the defendant, though discharged in bankruptcy, promised to do a part or the whole of the work charged in the account in set-off, in payment of the demands in suit, and that the work was done in part payment of such indebtedness. The instruction given rests upon the idea, that a verbal promise to pay, would not have bound the party making it, and that unless there was an actual liquidation and settlement between the parties, the defendant would be relieved from his promise. Such is not the law. If the work was done by the defendant, under an agreement that it was to be in part payment of the plaintiff’s demands, and the plaintiff so received it, the defendant would be bound by his agreement, notwithstanding the accounts may have remained unsettled and the promise was a verbal one. If the payment had been in money, the defendant could not by any subsequent dissent, reclaim the money, though it had been paid toward a claim discharged in bankruptcy. A payment once made and received as such must remain. Whether it was in money or by labor is immaterial, In neither case can it be recalled and become the basis of a substantive claim on the part of the individual making it.

But if the jury should be satisfied, that the items of work and labor filed in set-off were done by the defendant and received by the plaintiff in part payment of the demands in suit, it would in no way affect the balance remaining unpaid. The right of the plaintiff to recover for such amount, would be barred by the provision of the Act of Aug. 3, 1848, c. 52, which requires the promise to pay a debt discharged by bankruptcy to be in writing.

Exceptions sustained. .

New trial granted.