Ellis v. Burnham

• Decision Date: 10 March 1928
• Parties: ELLIS v. BURNHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 57

160 N.E. 437

ELLIS

v.BURNHAM.

Supreme Judicial Court of Massachusetts, Essex.

March 10, 1928.

Exceptions from Superior Court, Essex County; David A. Lourie, Judge.

Suit in equity by Clifton G. Ellis against Newman A. Burnham for specific performance of a written contract to give plaintiff a new note. Bill dismissed, and plaintiff excepts. Exceptions overruled.

W. F. Barrett, of Haverhill, for plaintiff.

G. G. Davis, of Haverhill, for defendant.

SANDERSON, J.

This is a bill in equity for specific performance of a written contract of the defendant to give the plaintiff a new note. The action was submitted by the parties upon a case stated. The judge, by ordering the entry of a decree dismissing the bill, in effect ruled that the plaintiff had not stated a case for equitable relief. The plaintiff seeks by his bill of exceptions to have this ruling reversed.

The material part of the note containing the contract relied upon is in the following terms:

‘Haverhill, Massachusetts, October 11th, 1924.

‘$1,787.75.

‘For value received I promise to pay to the order of Clifton G. Ellis on October 10th, 1925, or one year for the date hereof, the sum of one thousand seven hundred eighty-seven dollars and seventy-five cents ($1,787.75) in money of the United States of America; and in the event that I have not paid the said sum of one thousand seven hundred eighty-seven dollars and seventy-five cents ($1,787.75) by said, October 10th, 1925, then I hereby further agree and promise, for consideration received as aforesaid, if I am physically and mentally able to do so and only on this contingency, to make a new note payable in one year from that date, or on or about October 10th, 1926, for the balance unpaid by me of the said one thousand seven hundred eighty-seven dollars and seventy-five cents ($1,787.75), with interest at the rate of six per cent. per annum on said unpaid balance, said note to be payable to the order of the said Clifton G. Ellis at any bank in Haverhill, Massachusetts, said new note to contain all the terms and conditions of this note and agreement.

‘[Signed] Newman A. Burnham.’

The defendant Burnham, in the year 1923, borrowed the sum of $1,400 from the plaintiff and gave him a promissory note, payable on demand, for the sum of $1,400. The defendant being unable to pay the note in cash when payment was demanded gave the plaintiff the new note and agreement hereinbefore set forth. This note and agreement were given by the defendant and accepted by the plaintiff in payment of the defendant's note for $1,400. In October, 1925, when the note last given matured, the defendant was physically and mentally able to make and give the plaintiff a new note and agreement required by the terms and conditions of the note and agreement dated October 11, 1924, but refused and still refuses to do so. No part of the note in suit has been paid. On or about July 24, 1925, the defendant filed a voluntary petition in bankruptcy. Notice of the petition was duly given to the plaintiff. The defendant's liability on the document, herein called note and agreement, was duly scheduled in the petition as a promissory note, although the terms of the same were not set forth. The plaintiff did not file his claim or take any part in the bankruptcy proceedings. On or about December 11, 1925, the defendant received his discharge in bankruptcy and now pleads the same in defence of this suit.

The question for decision is whether this discharge relieved the defendant from the obligation of his agreement to give a new note. A discharge in bankruptcy releases the bankrupt from liability on all provable claims, but not on claims not provable. Watson v. Merrill (C. C. A.) 136 F. 359, 363. A fixed liability, whether liquidated or not, may be proved in...