White v. Cushing , 30 Me. 267 ( 1849 )

Howard, J.

— The plaintiff' is indorsee of a negotiable promissory note, signed by “J. A. Cushing & Co.” In the writ and declaration no notice is taken of the company, or of any signer but the defendant. The statute of limitations, and a discharge in bankruptcy of the defendant, were pleaded. A new promise to pay the debt was made by the defendant to the payee, after the decree of bankruptcy, and before the note was indorsed, and before the commencement of this suit.

The defendant having pleaded in bar, cannot take advantage of the non-joinder of a co-promisor. If he had intended to rely upon that fact, it should have been pleaded in abatement. 1 Chit. Pl. 29; 1 Saunders, 284, note; Ziele v. Executors of Campbell, 2 Johns. Ca. 382; Winslow v. Merrill & al. 2 Fairf. 127; R. S. c. 146, § 22.

It is contended that the new promise, relied upon by the plaintiff-, was not proved; or if proved, that it would not enable the plaintiff to maintain this action as indorsee of the note.

The new promise appears to have been established by competent and sufficient proof, but whether it is available to the plaintiff is the more important question.

The note was proveable in bankruptcy, and the certificate and discharge, under the United States bankrupt act of Aug. 19, 1841, § 4, fully and completely absolved the defendant from the contract and the debt. The discharge did not operate merely as a suspension of the remedy, like the statute of limitations, but it extended to the contract itself, affected its vitality, and impaired its obligation. It ceased to exist as a valid contract against the defendant; it became functus officio and could not be assigned. Trueman v. Fenton, Cowp. 544; Besford v. Saunders, 2 H. Black. 116; Baker v. Wheaton, 5 Mass. 509; Depuy v. Swart, 3 Wend. 135; Moore v. Viele, 4 Wend. 240; Dean v. Hewitt, 5 Wend. 257; Walbridge v. Harroon, 18 Vermont, (3 Washb.) 448.

The new promise, to the payee, was a new contract, to be interpreted and enforced upon its own terms, and did not revive the original contract expressed by the note, and was not negotiable. Depuy v. Swart, and Walbridge v. Harroon, before cited. Upon this promise, therefore, the plaintiff cannot maintain his action, and according to the agreement, must be nonsuited.