Eckler v. Galbraith & Lail
| Decision Date | 23 March 1876 |
| Citation | 75 Ky. 71 |
| Parties | Eckler v. Galbraith & Lail. |
| Court | Kentucky Court of Appeals |
APPEAL FROM HARRISON CIRCUIT COURT.
A. H. WARD, BLAIR & MARTIN, For Appellant.
J. Q. WARD, For Appellees.
JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.
Eckler held and owned an unsatisfied judgment against Galbraith & Lail. Galbraith was and is insolvent, and Lail had been discharged from the payment of the debt by a judgment in bankruptcy rendered by the District Court of the United States for the district of Kentucky.
In his original petition Eckler states all these facts, and then alleges that in October, 1869, Lail promised and agreed with him that, notwithstanding his discharge in bankruptcy, he would pay to him the sum of money evidenced by the said judgment against Galbraith and himself.
By an amendment to his petition Eckler stated facts showing that the promise declared on was not an unconditional promise, but a promise to pay the judgment "as soon as he (Lail) was able."
By a second amendment, filed June 27, 1874, Eckler averred that Lail was then able to make the promised payment.
The promise and all the material allegations of the petition and the amendments were denied by Lail.
A trial in the court below resulted in a judgment dismissing Eckler's petition, and he prosecutes this appeal.
It was necessary, to enable appellant to recover, that he should prove not only the making of the promise, but the existence of the condition upon which it was to become enforceable. The ability of Lail to pay is the essence of the undertaking, and it must be satisfactorily proved; otherwise no judgment can be rightfully rendered against him. (Mason v. Hughart, 9 B. Mon. 480; Egbert v. McMichael, Ibid. 44; Kingston v. Wharton, 2 Serg. & Rawle, 208.)
When Eckler proved that Lail held and owned property subject to the payment of debts, of value probably sufficient to satisfy his claim, he made out his right, prima facie, to a recovery. But Lail could defeat this apparent right by proving that the payment of debts contracted honestly and in the ordinary course of his business, subsequent to his discharge in bankruptcy, would exhaust his estate, and leave nothing to be applied to the satisfaction of Eckler's demand.
The promise declared on is a promise to pay when able. It was founded upon a moral obligation, and not upon a valuable consideration received at the time it was made. It can not be presumed the debtor intended or the creditor expected that the rights of persons who had dealt or who might thereafter deal with the late bankrupt in his ordinary business transactions should be subordinated to, or even placed upon terms of equality with, the right secured to Eckler by the conditional promise upon which he founds his action. The promise must be construed to...
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