Allen & Co. v. Ferguson

Mr. Justice HUNT delivered the opinion of the court. The question is, does the letter of the defendant, set forth in the replication, contain a sufficient promise to pay the debt in suit ? All the authorities agree in this, that the promise by which a discharged debt is revived must be clear, distinct, and unequivocal. It may be an absolute or a conditional promise, but in either case it must be unequivocal, and the occurrence of the condition must be averred if the promise be conditional. The rule is different, in regard to the defence of the statute of limitations against a debt barred by the lapse of time. In that case, acts or declarations recognizing the present existence of the debt have often been held to take a case out of the statute. ■ Not so in the class of cases we are considering. Nothing is sufficient to revive a discharged debt unless the jury are authorized by it to say that there is the expression by the debtor of a clear intention to bind himself to the payment of the debt. Thus, partial payments do not operate as a newT promise to pay the residue of the debt. The payment of interest will not revive the liability to pay the principal, nor is the expression of an intention to pay the debt sufficient. The question must be left to the jury with instructions that a promise must be found by them before the debtor is bound. * The plaintiffs in error contend that such promise is to be found in the letter of the defendant, forming a part of their replication. They rely chiefly ou these expressions : “ Be satisfied; all will be right. I intend to pay all my just debts,- if money can be- made from hired labor. Security *4 debt I cannot pay,” and on the postscript where he ádds, “ All will be right betwixt me and my just creditors.” There can be no more uncertain rule of action than that which is furnished by an intention to do right. How or by Whom is the right to be ascertained ? What is right in a particular ease? Archbishop Whately says: “ That which is conformable to the supreme will is absolutely right, and is called right simply, without reference to a special end. The opposite to l’ight is wrong.” This announces a standard of right, but it gives no practical aid. What may be right between the defendant and his creditors is as difficult to determine as if he had no such standard. . It is not absolutely certain that it is right for a creditor, seizing his debtor,-to say, Pay me what thou owest,. or that it is wrong for the debtor to resist such an attack. It is not unnatural that the creditor should think that payment of the debt was right, and that it was the only right in the case. It is equally natural that the debtor should entertain a different opinion. The law holds it ito be right that a debtor shall devote his entire property to the-payment of his debts, and when he has done this.-that after-acquired property shall be his own, to be held free from the obligation of all his debts, just debts as well as unjust, principal debts as well as security debts. Neither the s( preme will, so far as we can ascertain it, nor the laws of the land, require that a debtor whose family is iu need, or who is himself exhausted by a protracted struggle with poverty and misfortune, should prefer a creditor to his family; that he'should appropriate his earnings to the payment of a debt from which the judgment of the law has released him, rather than to the support of his family or to his own comfort. What an honest man should or -would do under such circumstances it is not always easy to say. tVriien, therefore, the debtor in this case said to the plaintiff: “Be satisfied; I intend to do right; all will be right betwixt my just creditors and myself,” he cannot be understood as saying that he would certaiuly pay his debt, much less that he would pay it immediately, as the plaintiff’ assumes. What is or what may be right depends upon *5 many circumstances. The principle is impracticable as a rule of action to be administered by the courts. There is no standard known to us by which we are able to say that it is wrong in the defendant not to pay the plaintiff’s debt. We are of the opinion that the letter produced does not contain evidence of a promise to pay the debt iu suit, and that the judgment appealed from must be Affirmed. Footnotes [*] Hilliard on Bankruptcy, 264 to 266, where the cases are collected.