Way v. Sperry

The opinion of the court was delivered at the October term, 1851. Metcalf, J. The case of Bulger v. Roche, 11 Pick. 36, is a decisive answer to the defence set up by the defendant, under the statute of limitations, against the first note specified in the plaintiff’s bill of particulars; and the only other point to be decided is, whether the defendant’s discharge in bankruptcy is a defence to that and the two other notes in suit. The plaintiff relies on a promise made to the payee of the notes, by the defendant, since his discharge. And it is well settled, that a distinct and unequivocal promise to pay a debt so discharged, or a promise to pay it on a condition which is afterwards fulfilled, is binding on the promisor, and may be enforced by action. Upon these exceptions, it must be taken that a binding promise by the defendant was proved at the trial. No new consideration was necessary to the validity of the promise ; Chit. Con. (5th Amer. ed.) 190 ; Penn v. Bennet, 4 Campb. 205; and no statute requires it to be in writing. But the defendant contends that if he is bound at all by his promise, he is bound only to the payee of the notes, to whom he made it, and that it did not revive or restore the negotiability of the notes. And his counsel cited Depuy v. Swart, [241] 3 Wend. 135; Moore v. Viele, 4 Wend. 420, and Walbridge v. Harroon, 18 Verm. 448, where it was so decided. Since the argument, a similar decision of the court of Maine has been published. White v. Cushing, 17 Shepley, 267. The grounds of these decisions, as stated in the report of the first of them, were, that “ the new promise is the contract upon which the action must rest; ” that “ the new promise does not renew the old contract, and renovate the note given on that contract; ” that “ the existence of the note is destroyed by the discharge, and cannot be revived and restored to all its former properties by the maker’s entering into a new contract, by which he becomes liable to pay what was due on the old contract; ” and that “ the defendant’s liability, therefore, is on the new contract, and that the suit should be in the name of him with whom such contract is made.” We are not satisfied with these grounds of decision. Foi we take it to be well established that, in actions brought on promises made by infants, and ratified after they come of age; on promises which have been renewed after the statute of limitations has furnished a bar; and on unconditional promises by discharged insolvent debtors and bankrupts, to pay debts from which they have been discharged; the plaintiff may declare on the original promise ; and that when infancy, the statute of limitations, or a discharge in insolvency or bankruptcy, is pleaded or given in evidence, as a defence, the new promise may be replied or given in evidence., in support of the promise declared on; that a replication, alleging such new promise, is not a departure, and that evidence thereof is not irrelevant. And we do not hold that a note, promise, or debt, is “ destroyed ” by a discharge in bankruptcy. If it were, it not only could not be renewed or revived, but it could not be a consideration for a new promise. Yet nothing is clearer, on authority, than that the old debt is a sufficient consideration for such promise. In all the cases above mentioned, the new promise operates as a waiver, by the promisor, of a defence with which the law has furnished him against an action on the old promise or demand. Maxim v. Morse, 8 Mass. 127 Foster v. Valentine, 1 Met. 522, 523. [242] We cannot perceive any legal difference, as to the point now in question, between the case of a debt that has been discharged by a process in bankruptcy, and a claim voidable on the ground of infancy, or barred by the statute of limitations. In the latter case, it has been decided that a new promise removes the statute bar, but does not create a new and substantive cause of action which is the basis of a judgment; and that the judgment must be considered as rendered on the old contract. Ilsley v. Jewett, 3 Met. 439. And where an infant gave a negotiable note, which he ratified by a new promise after he was of age, it was decided that he was liable on it to an indorsee to whom the payee negotiated it after the ratification. The court said the ratification gave the contract “ the same effect as if the promisor had been of legal capacity to make the note when he made it. This made it a good negotiable note from that time, according to its tenor; of course, when transferred to the plaintiff, he took it as a negotiable note, and may maintain an action on it.” Reed v. Batchelder, 1 Met. 559. And the indorsement of a note, after a new promise to the payee has taken it out of the statute of limitations, enables the indorsee to sue the maker. Little v. Blunt, 9 Pick. 488, and 16 Pick. 359. The same rule is applicable to the case at bar. A new promise made to the payee of a negotiable note is a promise to pay him or order, or bearer, according to its tenor. Exceptions overruled.