Bolton v. King , 1884 Pa. LEXIS 60 ( 1884 )

Mr. Justice Clark

delivered the opinion of the court, February 25th, 1884.

This action was originally a foreign attachment, brought by Mary King against Thomas Bolton, Henry Bolton and ’John Bolton, trading órlate trading as “The Bronx Company;” the attachment being dissolved, however, the action proceeded in assumpsit. The plaintiff’s claim was upon a note of The Bronx Company, dated July 3d, 1872, for four hundred dollars, payable to the order of the plaintiff below, on demand,for value received. Upon the note was endorsed a payment, dated September 9th, 1879, of $28, interest to 3d July, 1877. This’suit was.brought 13th December, 1881. The defendants interposed the plea of the statute of limitations, and also a special plea of their discharge in bankruptcy from all debts contracted prior to 28th May, 1878. The plaintiffs joined issue on the plea of the statute, and replied to the special plea that the defendants, after they became bankrupts, ratified and confirmed their promises, etc., and upon this the defendants joined issue. On the trial, the record was so amended that Henry Bolton was the only defendant, and the verdict was against him alone.

The statute of limitations is a bar to the remedy merely, and does not discharge the debt; there remains, therefore, besides the mere moral obligation to pay, the pre-existing indebtedness, as a consideration for a new promise; it has, therefore, been repeatedly held that from a clear, distinct and unequivocal acknowledgment, a promise may be inferred, if that acknowledgment is consistent with a promise. Palmer v. Gillespie, 95 Penna. St., 340; Wesner v. Stein, 97 Penna. St., 322; Lawson v. McCartney, 31 Pitts. Leg. Jour., 255. A promise, whether express or thus implied, has been regarded as a waiver of the statutory defence and the remedy is restored; the action must of course proceed upon the original contract,, not upon the new promise.

But the mere acknowledgment of a debt, however clear, distinct and unambiguous it may be, in terms, is not now sufficient to restore a debt which has been discharged under the operation of the bankrupt law. Yoxtheimer v. Keyser, 11 Penna. St., 364; Canfield’s Appeal, 1 W. N. C., 67; Allen v. Ferguson, 9 Bk’cy, L. R., 481. The effect of a discharge in bankruptcy is an absolute extinguishment of the debt, and not a mere bar of the remedy for its recovery. Nothing remains, after the discharge but the moral obligation to pay, which,, taken with the fact of the prior legal obligation, has been held to form a sufficient consideration for a new express promise ; in the nature of the ease -«however, there can not arise a promise by implication, as the mere acknowledgment of a debt would not create any liability, if, in fact, no debt existed.. The promise to restore a debt from which the debtor has been, discharged, whether by proceedings in bankruptcy or otherwise, must be a clear, distinct and unequivocal promise to pay the specific debt, not the expression of a mere intention to-pay; it must be without qualification or condition, and must contain all the essentials of a valid express agreement, excepting only the element of a valid consideration; the moral obligation, taken with the fact of a pre-existing liability, will furnish the consideration. In an action upon such a claim the-declaration must, therefore, be upon the new promise, and not the original, as the latter is extinguished by the discharge.

The facts principally relied on by the plaintiff below, to-establish the fact of a new promise by Henry Bolton, to pay the debt, evidenced by the note of July 3d, 1872, and to relieve her claim, not only from the bar of the statute, but from the defendants’ discharge, are contained in a letter written by the defendant to John Shallcross, Esq., who was. the plaintiffs attorney in the collection of the note. The trial was had on the 6th February, 1883. Mr. Shallcross testified that about two years before the trial he wrote a letter in, behalf of his client to Henry Bolton, concerning the note, and. received.a reply in writing, which was passed into the hands of Thomas Rowland, and was afterwards mislaid or lost.

Mr. Rowland being called to testify as to the contents of this letter, says:

“ The letter, I think, had a printed heading of the Bronx Company ; it was signed H. B. Bolton, the defendant. I think I can give the contents word for word: ‘We owe her the money; we will pay it some day, can’t say when. H. B. Bolton.’ I read the letter more than once; I think I have gone over the letter twice or three times; I took it home, and, I think, I have gone over that letter several times.”

Mr. Shallcross, testifying on the same subject, says: “ It is utterly impossible for me to give the exact phraseology of the letter; my distinct recollection about the letter is, that it first acknowledged the receipt of my letter, and admitted the indebtedness upon the note; that they could not pay the note then, but that sometime in the future, it was indefinite as to the time, the note would be paid. That is about all my recollection of the answer to my letter.”

• The language of the letter from Shallcross to Bolton was directed to the specific debt in suit, and the acknowledgment and promise contained in Bolton’s reply, whatever may have been its precise form, were certainly also made with reference to the same debt. Whether Mii Rowland or Mr. Shallcross stated correctly the contents of Mr. Bolton’s letter, was a question for the jury; the testimony justified a submission; as an acknowledgment of indebtedness, and a promise to pay, ■combined in a single phrase, no form of words could be more ■distinct, clear and unequivocal than this: “We owe her the money; will pay it some day; can’t say when.” It is true no itime was fixed, for the payment, but no condition was annexed, ■no qualification superadded; the word “ will ” is auxiliary to “pay; ” the letter was not the expression of mere sentiment, ■or of a willingness or intention to pay only, it contained a present positive promise, deliberately made by a business man in reply to a business letter, and an action was maintainable upon it as soon as made. If Bolton had written, “We owe her the money, will pay it,” no one could, for a moment, doubt the sufficiency of such an explicit promise, and yet the time of payment is just as indefinite as if the words, “some day, can’t say when” were added. If the promise is otherwise in proper form, it is unimportant that no particular time is designated for payment.

The action having been instituted as a foreign attachment, in which the funds accruing to the defendant from the Brooks’ estate were attached, it was unimportant, we think, that the defendant was .shown to have afterwards received his share ; the record of the attachment exhibited the fact that this fund had been attached, and that the attachment had been dissolved on the entering of security. We regard this feature of the case as of little consequence to either party, and, even if the testimony might in strictness be considered as immaterial, we would be unwilling to reverse the judgment for that which could not have done any harm.

The statutes providing for amendments have always been liberally construed. The court was certainly right in making the order allowing the plaintiff to file an amended declaration after verdict and before judgment. The amended declaration was just in such form as “ to make the pleadings and record conform to what was tried before the jury and found by the verdict,” and was therefore within the letter of the Act of 14th March, 1872. Pur. Dig., 70, pl. 7. Reeside v. Hadden, 2 Jones, 243.

We are of opinion that this cause was rightly tried; we find no error in the record and the

Judgment is affirmed.

Mercttr, C. J., and Gordon, J., dissent, as they deem all the evidence clearly insufficient to revive a debt extinguished by a discharge in bankruptcy.