Cheney v. Barge

Baker, J. In St. John v. Stephenson, 90 Ill. 82, it is held that the promise by which a discharged debt of a bankrupt is revived may be an absolute or a conditional promise, but that it must be clear, distinct and unequivocal. The same rule obtains in the Supreme Court of the United States, and in the courts of last resort in other States. The mere expression of an intention to pay the debt is not sufficient; but no precise form of words is required to make a new promise. An intention is but a purpose formed in the mind; but a promise is an express undertaking or agreement to carry that purpose into effect, and must be express, in contradistinction to a promise implied from an acknowledgment of the justness or existence of the debt. Hubbard v. Farrell, 87 Ind. 215, and cases there cited. In Cook v. Shearman, 103 Mass. 21, the important expressions found in the letters written by the bankrupt were: “ I expect to pay you all there is due you with interest to the time of payment, and I will certainly see to it that you are no loser by me. Early in July I hope to pay the amount due you, possibly sooner than that. I shall certainly do so as soon as possible. I shall see to it that you are not the loser for your courtesy.” It is plain that the statements found in these letters of the expectations and hopes of the writer were mere expressions of intention, and were wholly inoperative to impart vitality to a dead indebtedness. The court held the debt of the bankrupt was revived, and speaking through Hr. Justice Gray, now' an Associate Justice of the Supreme Court of the United States, said: “ The statements in those letters that the defendant expects to pay the plaintiff all that is due to him, and hopes to be so situated as to send him the full amount of his bill, with interest, coupled with the assertions that he will see to it that the plaintiff does not lose by him, amounted to a distinct and unequivocal promise.” It is manifest that the salient words to constitute the promise were those in which he undertook and agreed .to see to it that the plaintiff did not lose by him. In the case at bar, the words are ° ec If I live and am prospered, no man who helped me (without remuneration) will be no poorer for me, if not otherwise. That is all there is of it, and if any man was to ask you if you believed in me, you would say ‘yes,’ and I know it.” Appellee helped appellant without remuneration by becoming his security for borrowed money, and this money he was legally bound to pay to the lender when called upon therefor, and afterward did pay. He would necessarily be the poorer for that help, unless appellant repaid him. Appellant assures appellee that no man who helped him, appellant, without remuneration, will be the poorer for him. The words used import and amount to a clear, distinct and unequivocal undertaking and promise. They are nota mere recognition and acknowledgment of an indebtedness. USTor are they simply the expression of the hopes, expectations and intentions of appellant. Cook v. Shearman, seems to be very much in point. In substance and in legal effect there can be no difference between the assertion that one will see to it that a party does not lose by him, and the assurance that if he lives and is prosperous then such party will be no poorer for him—except that in the one case the undertaking is absolute' and in the other it is conditional. In this case the assurance given is made emphatic and pointed by the use of these words: “That is all there is of it, and if any man was to ask you if you believed in me, you would say ‘jms,’ and I know it.” Many of the cases cited by appellant on this branch of the pending controversy are clearly distingnishab'e from the case at bar and are not in conflict with the views we have expressed. Others of them we are not inclined to follow. If language is to be construed as meaning what the words used plainly indicate, it would seem the expression “I shall not take any notice of your abuse of me till I have paid you the amount I owe you, which I shall surely do,” is equivalent to the statement “I shall surely pay you the amount I owe you.” We are wholly unable to comprehend upon what ground it can i-easonably be held that snch words do not amount to and constitute a plain and unequivocal promise to pay. Men in their ordinary business transactions would so understand them. To our minds, snch language, ex vi term.ini, imports a promise and undertaking. It is objected that the alleged new promise being a conditional promise,'appellee should have declared specially upon such promise. There is some conflict in the authorities upon this point, and in this State, in respect to a conditional promise, it has not been expressly decided either way. In 1 Chit. PI. 54, the doctrine is stated xvith some doubt; he says: “When the subsequent promise is effectual, it is sufficient to declare upon the original consideration, unless where the promise is conditional, in which case it seems to be necessary fur the creditor to declare specially.” In Wait v. Morris, 6 Wend. 394, it was held that where a conditional promise forms the basis of the suit, the plaintiff may either declare upon it specially, or set it forth in his declaration. Like decisions hax'e been made by other respectable courts. In Marshall v. Tracy, 74 Ill. 379, no question in respect to a conditional promise arose, and what the court there said hardly amounts to the expression of an opinion in regard to the point here in controversy. In St. John v. Stephenson, 90 Ill. 82, the court said: “The occurrence of the condition must be averred if the promise be conditional;n but there is nothing in the case to indicate that such averment, and the averment of the new promise itself, might not be set up in the replication. But waiving this consideration, which is a matter of some doubt, appellant did not demur to this replication of a conditional new promise, but filed rejoinders thereto, denying both the making of the conditional new promise and the happening of the contingent event alleged therein. Assuming that by interposing a demurrer he could have compelled the plaintiff to so amend his declaration as to base his right of action stated therein expressly upon the new promise, yet by his not doing so, but on the contrary filing issuable rejoinders thereto, he must be considered as having elected to waive the defects and informalities in the pleadings. It is perfectly manifest from the pleadings, and the issues formed thereon and submitted to the jury, the latter could not have found a verdict for appellee without both the alleged new promise and the happening of the condition stated therein were duly proved at the trial. It would seem the defects in the pleadings, if any, are mere defects in 'matter of form, for it must be admitted that all the allegations necessary to sustain the action, verdict and judgment are found not only in the record, but in the pleadings of appellee. Whatever defects there are were waived by appellant, and such defects are added by intendment after verdict. See also, Secs. 3, 6 and 7 of the statute of amendments and jeofails. Oral testimony was properly admitted by the trial court for the purpose of showing that when the note was given and when the letter was written and delivered, there was no other transaction or business between the parties; it was necessary in order to identify the claim in suit, and apply the letter to the subject-matter to which it related. Cook v. Shearman, supra, is directly in point. The same rule has been held in this State. Reed v. Ellis, 68 Ill. 206; Marshall v. Gridley, 46 Ill. 247. It is urged that at the time the letter was written appellant was not the debtor of appellee; that then, and for more than a year afterward, appellee was simply his surety on a note payable to the Dixon National Bank. If there was, in fact, no indebtedness between them, then it would seem the principle of equality should require it to be held the debt arose after bankruptcy, and the discharge was no bar. But the claim of appellee against appellant was in existence and provable in his favor, against the estate of the bankrupt when the petition in bankruptcy was filed. Bump’s Bankruptcy, 7th Ed., 647, Sec. 5070, R. S. U. S. The relation of debtor and creditor between them commenced at the date of the note, and not from the time the surety made payment. Choteau v. Jones, 11 Ill. 300. A new promise to bind a bankrupt may be founded on a contingent liability, for instance, that of a security for his principal debtor before payment of the debt. Earle v. Olinn, 2 Exch. 71. See Hare and Wallace’s notes to Trueman v. Fenton, 1 Smith’s Load. Cas., 6 Am. Ed., 968. It is insisted upon by appellant that as the letter was written and mailed on the 2Sth day of August, 1878, and the petition in bankruptcy was not filed until the 29th day of the same month, the promise contained in the letter, if any, could not affect a discharge granted upon the proceeding begun subsequent to the day on which the letter was so written and mailed. The certificate of discharge takes effect from the commencement of the proceedings in bankruptcy and the promise to pay to be binding as a new promise must be made by the debtor after the commencement of such proceedings. If a new promise to pay is binding, so. that it can be enforced by the courts, it must be upon the ground it is a contract. When appellant wrote the letter at Sioux City, Iowa, and mailed it, properly addressed to appellee at Dixon, Illinois, he made the postal authorities his agents to carry and deliver the letter. He must be presumed to have had in contemplation that the letter would be carried to Dixon by due course of mail, and would reach there in the usual time required at that time for a letter to go by mail from Sioux City to Dixon. It did in fact reach there in such usual time and was received by appellee on or about the 31st day of August, either that day or the next succeeding day. This was just what appellant expected and intended. It is in substance as though appellant had, on the day of the receipt of the letter, met appellee and made to him the promise by word of mouth. Mind did not meet mind until the letter was received by appellee. This is not a case where there was delay and hinderance and a failure to have the letter reach the proper party at the propei- time. When such cases arise, it will be time enough to dispose of the extreme and supposititious cases suggested by counsel in their argument. In the view we have taken of the case, it is wholly unnecessary to consider the exceptions taken to the instructions of the court. We find no error in the record; the judgment is affirmed. Judgment affirmed.