Evans v. Carey

GOLDTH WAITE, J. We regard the principle too well settled, at this day, to admit of controversy, that to revive .a debt barred by the statute of limitations, there must be a promise by the debtor to pay the debt. This principle was fully discussed and settled in the case of Bell v. Morrison, 1 Peters, 357, which decisionhas been followed in most of the States. — Angelí onLim. (2d ed.) 228, 245. The promise may be either express or implied, conditional or unconditional. If implied, it can only be so by a clear and distinct recognition of the debt as an existing one; and even then, if the.admission is accompanied by expressions which leave it doubtful whether the party making them was willing to waive the benefit of the statute, the law will not imply -a promise in such a case. The statute is emphatically one of repose; and a just regard for its intention requires its application to every case which is not exempted from its operation, either by an express promise, or by facts which clearly imply one. In the present case, there is no admission of the debt. We say this, for the reason, that the relation of debtor and creditor could not exist, as between these parties, unless Carey had made the payment as the endorser for the appellant; and the fact of this payment was not admitted. But it is conceded that this makes no difference, if there was an express promise by the appellent to pay the amount which Carey had paid for him. The only effect of such a promise would be, to require the payment to be proved; and that being done, [108] the debt proved, although barred by the statute, would be a consideration which would support the promise. — Ang. on Lint. (2d ed.) 251, 252. If Evans had sáid, “I am surprised at Mr. Carey saying that he has paid any thing as my endorser to the Milledgeville Bank; but if he has paid anything upon such endorsement, I will repay him the amount he has paid/7 that would have been a clear case of an express promise; and if what he did say had the same meaning, it must have the same effect. There is no precise form of words required. The true test is, did the party mean that he would pay the amount of the debt? If he did, and the words used by him are susceptible of no other construction, then they amount in law to an express promise. Applying this test in the present case, we do not see how there can be any doubt. If a man, when speaking of a debt barred by the statute, or discharged by bankruptcy, say, without any qualification, that he is able and willing to pay to the creditor, he certainly means that he will pay. What else can he mean ? We must give the words a common-sense construction, such as would be placed upon them in .the ordinary intercourse between men; and taking them in that sense, we regard them as amounting to an express promise to pay the plaintiff the amount he had paid for him as endorser. It is supposed by the counsel for the appellant, that the conclusion which we have attained is in conflict with Bell v. Morrison, supra. In that case, there was an unascertained balance due; which the debtor expressed himself anxious and willing to settle; and he finally made an offer of less than one half of the amount proved to be due, by way of compromise, which was not accepted. The term used, '■‘settle,” was not only ambiguous, and wholly indefinite, but, when viewed in connection with the -circumstances with which it was used, leaves the mind in doubt whether any thing more was intended than the ascertainment of the amount due. But if it be -conceded that the term was used with reference to the balance when ascertained, it is equally indefinite. The amount was uncertain, and the party was anxious and willing to “settle,” that is, to close it; but as to how, or on what terms, we are left entirely in the dark. We agree entirely with the learned judge who delivered the opinion in the case referred to; which [109] is, in effect, that the language relied on was entirely too loose, and indeterminate to amount to an express promise, or to raise an implied one. If, however, the debtor had said, “whatever amount is due upon the account, I am able and willing to pay you,”, then it would have been identically the case at bar, and we cannot doubt that the decision of the court would have been different. Note by Repoeteé. — The foregoing opinion was delivered at the June term, 1855, but was afterwards withdrawn, and a re-argument awarded; and at the June term, 1856, the following opinion was pronounced. What we have said, is decisive of the case, both with regard to the statute of limitations, and bankruptcy. If the language stated by the witness Henry was used, it amounted in law to an express promise to pay the plaintiff. There was no necessity for referring its construction to the jury; and it not only operated to prevent the bar of the statute, but exempted the debt from the operation of the discharge in bankruptcy. — Moore v. Viele, 4 Wend. 420; Dearing v. Moffit, 6 Ala. 176; Branch Bank v. Boykin, 9 Ala. 320. That the parol agreement to release one partner does not operate to discharge a debt as against the other, is shown in Harrison v. Close, 2 Johns. 448; Rowley v. Stoddard, 7 John. 209; Shaw v. Pratt, 22 Pick. 808; Walker v. McCulloch, 4 Greenl. 421. Judgment affirmed. RICE, C. J. Nothing less than an express promise to pay will revive or renew the legal obligation of a debt discharged by a decree in bankruptcy. And therefore, if the words spoken by Evans to Henry amount to nothing more than “loose declarations,” or mere “admissions,” or the mere expression of the obligation in foro conscientim which Evans felt existed after his discharge in bankruptcy, they are insufficient to avoid the effect of that discharge. — Bartlett v. Peck, 5 La. Annual Rep. 669; Linton v. Stanton, 4 ib. 402; Prewett v. Caruthers, 12 Sm. & Marsh. 491; Pool v. Relfe, 23 Ala. R. 701; Stark v. Stinson, 3 Poster’s Rep. 259. But, if those words amount in law to more than all these, and to an express promise to pay Carey the sum he had paid [110] as the endorser of Evans to the Milledgeville Bank, they are sufficient to avoid the effect of that discharge, as to the sum so paid by Carey. If such promise was in fact made, it is immaterial whether the words which constitute it were uttered to Carey himself, or to a third person in his absence. If the words spoken by Evans amount in law to such promise, neither reason nor law would justify us in deciding, that the promise is deprived of all efficacy, by the mere fact, that the words were uttered to Henry, and not to Carey or Ms agent. Such a decision would commit us to the following extravagant propositions, to-wit: 1st, that in order to avoid the effect of a discharge in bankruptcy, the creditor must not only prove that the bankrupt made an express promise to pay to him the debt, but must go further, and prove also that the words which constitute the promise were uttered to him, or to Ms agent• 2d, that a bankrupt was disabled from reviving a debt in favor of an estate upon which no administration had ever been granted, by any words he might utter whilst the administration of the estate remained vacant; 3d, that a bankrupt could not revive a debt in favor of a living creditor, by any words he might speak, unless he could find the creditor or his agent, and speak the words to the one or the other; 4th, that although it is a well settled principle, that if A. promises B. to pay a third person a sum of money, and the promise is founded on a sufficient consideration, such third person may maintain assumpsit on the promise, yet this principle cannot, under any circumstances, be applied to a promise made by a bankrupt. We cannot sanction a position which gives countenance to propositions so entirely indefensible. On the contrary, we decide, that an express promise by a bankrupt to pay to the creditor a particular debt discharged in bankruptcy, will avoid the effect of such discharge, as well when the words constituting such promise are spoken to a third person, as when they are spoken to the creditor personally, or to his agent. — Huckabee v. May, 14 Ala. R. 263; Wynne v. Raikes, 5 East, 515; Soulden v. Van Renssalaer, 9 Wend. 291; Besford v. Saunders, 2 H. Bl. 116; Edson v. Fuller, 2 Foster’s R. 183 ; Haines v. Stauffer, 13 Penn. State Rep. (by Harris), 541; McKinley v. O’Keson, 5 Barr, 369; Comfort v. Eisenleis, 11 Penn. State Rep. (by Jones), 18; Way v. [111] Sperry, 6 Cushing's Rep. 238; Cogburn v. Spence, 15 Ala. Rep. 549; Herndon v. Givens, 19 Ala. R. 313. In determining whether the words of the bankrupt amount in law to such express promise, the fact that they were spdken to a third person, and not to the creditor or to his agent, may be taken into consideration, with the other facts in evidence; for the sense of the words may best appear, from them and the cause and occasion of speaking them, considered together. And we will not say that there may not be cases, in which the question whether the words of a bankrupt amounted in law to an express promise to pay the debt to the creditor, would not turn upon the question whether they were spoken to a third person, or to the creditor. But, allowing to Evans the benefit of the foregoing rules, and construing the charge of the court in connection with the evidence, we are satisfied there was no error in the con - elusion, that his words as stated by Henry in his testimony, as set out in the record, “avoided the effect of his discharge in bankruptcy, as to the sum paid by Carey as his endorser to the Milledgeville Bank.” The complaint of Carey against Evans, made known through Henry, was not that Evans was unable to pay, but that, being able, “he had treatedlhim badly in permitting him to suffer largely as defendant’s endorser to the Milledgeville Bank.” “The defendant seemed surprised, and said, if Mr. Carey (the plaintiff) had paid any thing on account of such endorsement, he, the defendant, was able and willing to pay it to the plaintiffHere is a signification by the words of Evans, taken according to their natural import, of an intention on his part to confer on the plaintiff the right to require payment of whatever amount he had in fact paid as his endorser to the Milledgeville Bank; and there is a total absence of evidence to repel the presumption arising from the natural import of the words, or to raise a doubt about his intention. Without adding any thing more, we adopt the opinion heretofore delivered in this case, as herein explained, as the opinion of ¡this court, ¡and affirm the. judgment of .th,e ■•court below.