Kiernan v. Fox

Barrett, J.: The motion to set aside this verdict, made, upon the minutes, was granted upon the authority of Scheper v. Briggs (28 App. Div. 115). From this we infer that the learned trial justice thought that the defense of the decedent’s discharge in bankruptcy should have been sustained. In reviewing his decision, it may be assumed that the plaintiff proved the original loans to Mr. Fox, as averred in her complaint. These loans were made by her in the year 1872, and Mr. Fox was. discharged from all his debts by a decree in bankruptcy made in the year 1881. The question then is, did the plaintiff establish a new promise by Mr. Fox to pay the debt made subsequent to his discharge. It is well settled that to revive a debt discharged by a decree in bankruptcy there must be an express and distinct promise in writing to pay it. (Moore v. Viele, 4 Wend. 420, 422; Allen & Co. v. Ferguson, 18 Wall. 1; Lawrence v. Harrington, 122 N. Y. 408; Elwell v. Cumner, 136 Mass. 102; Bigelow v. Norris, 141 id. 14; Scheper v. Briggs, 28 App. Div. 115.) In the [59] latter case Justice Rumsey said that, “ although that promise need not he expressed, it must be one which is necessarily implied from the words of the writing.” This language was evidently not intended to convey the idea that the promise need not be express. It simply pointed out that even an express promise need not be expressed in any particular form of words. As was said in Buffalo & New York City R. R. Co. v. Dudley (14 N. Y. 336, 351), “ if the language used, when fairly interpreted, imports an undertaking to pay, this, I' apprehend, constitutes an express promise.” Was there, then, an express promise here to pay the discharged debt ? The plaintiffs case on this head rests entirely upon a letter written by Mr. Fox in August, 1886, to a friend of the plaintiff’s, one O’Reilly. O’Reilly was the person who negotiated the loan, and he was interested in securing payment. The letter reads as follows: “PATRICK FOX, “ Room 107. Real Estate, No. 111 Broadway. “ New York, August 23, 18-86. “ My dear O’Reilly : “Yours of the 21st July came duly to nand, and in reply thereto would say that at the present time I am in no condition to pay. One would- suppose to see my name in the papers, that I was a capitalist, but a great many of the sales at the R, E. Exchange, where I am reported- as the purchaser is for some friend, or where the property belongs to a friend where I have to bid it in. However, I will say to you that when I am in a position to pay there is no one I would more cheerfully pay. I have a number of'interests in real estate and hope to realize on some of them soon, and when do I will not forget'the deceased friend’s family. Please excuse me ' for not answering your letter before this. I will call and explain my position more fully in person. “ Yours, truly, “PATRICK FOX.” We find here no unequivocal, promise to pay. Mr. Fox says that when he is in a position to pay there is no one he would more cheerfully pay. This is certainly ambiguous. So is the expression that when he realizes, as he hopes to, on some of his interests in rear estate, he will not forget his deceased friend’s family. These expressions left the whole matter in the air. They suggested hope of [60] payment, but they could, not well have inspired faith. In a general way they evinced kind feeling and generous purpose; but that is all. There is no certainty about it. It is impossible to hold that this vague and guarded language, coupled, too, with a subsequent phrase in which the writer says, “I will call and explain my position more fully in person” amounted to a clear, distinct and unequivocal promise to pay, or that it necessarily, or reasonably imported such a promise. There was consequently nothing for the jury to pass upon. The absence of the required promise was manifest upon the face of the letter, and there- was- no question of fact as to its intent or meaning. The order appealed from was, therefore, right and should be affirmed, with costs. Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred. Order affirmed, with costs.