Ecker v. Bohn

• Decision Date: 22 June 1876
• Citation: 45 Md. 278
• Parties: SAMUEL ECKER v. DANIEL BOHN.
• Court: Maryland Court of Appeals

45 Md. 278

SAMUEL ECKER v. DANIEL BOHN.

Court of Appeals of Maryland

June 22, 1876

APPEAL from the Circuit Court for Frederick County.

This suit was instituted to recover from the appellant a sum of money alleged to be due by Jacob S. Bohn to the appellee. The amended narr. alleged that Jacob S. Bohn was indebted to the plaintiff for money paid by the plaintiff for the said Bohn, and the same was well known to the defendant that said Bohn conveyed and transferred his equitable interest in certain real estate lying in Frederick County, to the defendant; that said Bohn at the time of such transfer and assignment was insolvent, and the same was well known to the defendant; that after the said conveyance and assignment the plaintiff was about to institute proceedings in the District Court of the United State, for the District of Maryland, against the said Bohn, for the purpose of having and procuring the said Bohn to be adjudged and declared a bankrupt, and the said interest of the said Bohn in and to said real estate to be sold and the proceeds of the sale thereof to be applied to the payment of his debts, and amongst others, to the payment of the said debt of the said Bohn due to the plaintiff; and that the said defendant in consideration that the said plaintiff would abstain from instituting the proceedings aforesaid, undertook and faithfully promised to pay the said plaintiff the debt due to him as aforesaid by the said Bohn; that the plaintiff relying on the said promise and undertaking of the defendant, and in consideration thereof, did abstain from instituting said proceedings; but that the defendant refused although often requested so to do, to pay to the said plaintiff the said sum of money due from Bohn as aforesaid, according to the said promise and undertaking of the defendant in that behalf. The defendant demurred to the declaration. The Court overruled the demurrer and the cause proceeded to trial, during which sundry exceptions were taken; only one--the ruling of the Court on the prayers--need be particularly referred to.

The plaintiff offered the following prayers, which the Court (LYNCH, J.,) granted:

1. That if the jury shall find from the evidence that the defendant promised to pay the plaintiff's debt or any part thereof in the narr. mentioned, that the plaintiff was liable for a certain Jacob S. Bohn, upon a certain note to Nicholas Metcalfe, that said liability was upon the plaintiff at the time of said promise made, if the jury so find, that then the verdict of the jury must be for the plaintiff, for the amount paid by him on account of Metcalfe's note even though the jury should further find that the note for $150, eight months after date, payable, offered in evidence was obtained from said defendant by fraud, violence or intimidation, if the jury should find such on the part either of the plaintiff or any agent of the plaintiff, if the jury should find that the plaintiff had any agent for the obtention of said note.

2. That if the jury shall believe from the evidence that the defendant promised to pay the causes of action, or any of them proved by the plaintiff, subsequent to the making of the deed from Jacob S. Bohn to defendant, if the jury should so find said deed, and shall further find that the plaintiff paid said several causes of action, or any of them, and that the defendant has never paid the same to the plaintiff, that then the verdict of the jury must be for the plaintiff, even though the jury should further find that before the making of the said promise to pay the plaintiff, or at any other time the defendant had paid debts due by Jacob S. Bohn, which exceeded the value of the property conveyed to defendant by said Jacob S. Bohn, if the jury should so find.

The defendant offered nine prayers, of which only the following which the Court rejected, need be set out:

3. That if the jury shall believe, that at the time the promise was made by the defendant to pay the indebtedness of Jacob S. Bohn, that the consideration of said promise to pay the debts of Jacob S. Bohn by the defendant, was that the plaintiff on his part agreed with said defendant, not to institute proceedings in bankruptcy against the said Jacob S. Bohn; and shall further find that at the time of said promise and undertaking of said defendant, the said Jacob S. Bohn was indebted to the plaintiff in a less sum than the sum of two hundred and fifty dollars, paid and advanced by the plaintiff for the said Jacob S. Bohn, at his request, an amount insufficient to give jurisdiction to the District Court of the United States, for the District of Maryland, where said Jacob S. Bohn resided at the time of the alleged promise, in cases of involuntary bankruptcy, then the plaintiff is not entitled to recover in this action on the first count of the amended declaration, and their verdict must be for the defendant.

The verdict and judgment were for the plaintiff, and the defendant appealed.

The cause was argued before BARTOL, C.J., BOWIE, GRASON, and ALVEY, J.

Charles W. Ross and James McSherry, for the appellant.

It is well settled in Maryland, that to bind a party upon a collateral promise to answer for the debt or default of another, it is necessary under the Statute of Frauds, that the consideration, as well as the promise, should appear in writing. Hutton vs. Padgett, et al., 26 Md., 231. This is a collateral undertaking, and must be in writing. Elder vs. Warfield, 7 H. & J., 395.

The principle of the Act is, "that where a man undertakes to do something which by law he is not bound to perform, it shall be reduced to writing. Kirkham vs. Marter, 2 Barn. & Ald., 617.

The fact that the appellee had a right of action against Jacob S. Bohn, and was about proceeding in bankruptcy against him to recover the debt, and that the appellant promised to pay, in consideration of the appellee abandoning and abstaining from instituting said proceedings, does not constitute a new superadded consideration. This is settled by the cases of Fish vs. Hutchinson, 2 Wilson, 94; Kirkham vs. Marter, 2 Barn. & Ald., 613, cited and approved in Elder vs. Warfield; Watson vs. Randall, 20 Wend., 201.

Even though there is a good consideration for the promise, if the debt is still subsisting against the original debtor, the promise must be in writing. Simpson vs. Patton, 4 Johns., 421; Jackson vs. Rayner, 12 Johns., 291.

The narr. alleges that Jacob S. Bohn was bankrupt within the meaning of the Act. If the debt was one, provable under the Act, (sec. 19,) then the appellee would have had the right to proceed, but if the bankrupt had been guilty of giving a preference or doing other of the acts enumerated in section 29 of the Act, he could not have been entitled to his discharge, and any creditor could oppose his discharge.

Jacob S. Bohn was the active party in procuring the promise as the evidence shows. But independently of that, the effect of the promise, no matter how procured, was to place the creditor in a position where he could not oppose the bankrupt's discharge. A contract producing that result is expressly declared to be void by section 35, of the General Bankrupt Act. And if void, cannot be made the foundation of a suit at law. See Davis vs. Holding, 1 Mees. & Wel., 161, 165; Ex parte Thompson, 1 Ves. Jr., 157; Bruce vs. Lee & Mullikin, 4 Johns., 410.

Again the promise should be valid on the part of the appellant, that on the part of the appellee should also be binding and obligatory--they must be mutual. Tasker vs. Wood, 12 Johns., 190; Keef vs. Goodnell, Ib., 397; Lamar vs. McNamer, 10 G. & J., 116. It must appear that the proceedings which the party agrees to forbear are well founded and sustainable. Watson vs. Randall, 20 Wend., 201; 1 Parsons on Contracts, 365, 366; Wade vs. Simeon, 2 Mann. Gran. & Scott, 548, (52 E. C. L. R.); Maull vs. Vaughan, 55 Ala., 134.

The appellee's prayers should have been rejected. The first prayer is defective in two respects. The first (being common to both prayers,) is, that it leaves the jury to find for the appellee upon a mere naked promise of the appellant, without regard to its being made in consideration of forbearance. The second, that it changes the issue made by the narr., and allows the jury to find for the appellee, although at the time the promise was made, the appellee had not paid these claims, upon which he was liable as surety.

The narr. alleges, that Jacob S. Bohn was indebted to the appellee for money paid and advanced by the appellee for the said Jacob, &c. The evidence of the appellee shows, that at the time of the promise he had not paid the money for which he was liable as surety. The prayer directs a verdict for the appellee upon a mere liability to pay at the time the promise was made--thus varying the issue made by the narr.--and thus holding, as matter of law, that a promise made by Ecker to pay the appellee, in consideration of the latter's forbearance to proceed in bankruptcy, was valid and a sufficient consideration, even though the appellee had not the lawful authority at the time of the promise to institute the proceedings in bankruptcy by reason of his not having paid the claim upon which he was surety for Jacob S. Bohn, and consequently, not having a provable claim against said Jacob, under the Bankrupt Act. Bankrupt Law U.S., sec. 19. Both prayers radically change the issues in the cause, and both permit the jury to find for the appellee upon a mere naked promise by the appellant to pay Bohn's debts, without the least regard to the question whether that promise was made in consideration of a contemporaneous promise on the part of the appellee to forbear proceedings against Jacob S. Bohn. The jury is not left to find whether there was or was not a...