Elwell v. Cumner
| Decision Date | 28 November 1883 |
| Parties | Noah Elwell v. J. T. Cumner |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Worcester. Contract upon a promissory note for $ 400, dated August 4, 1875, payable on demand to the order of the plaintiff, and signed by the defendant. Writ dated February 26, 1883. Answer, a discharge in bankruptcy, granted on August 3, 1880, from debts existing on April 20, 1878. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon agreed facts, in substance as follows:
The defendant has received his discharge in bankruptcy, and has not, since said discharge, paid any debt which he owed before the discharge was granted. The discharge is a bar to this action, unless certain letters, three in number, written by the defendant to the plaintiff, are "evidence of a new or continuing contract," within the provisions of the Pub. Sts. c. 78, § 3, so as to deprive the defendant of the benefit of relying upon the discharge in bar of the action. The first letter, dated August 18, 1878, contained the following: The second letter, dated February 20, 1880 was as follows: The third letter, dated May 14, 1881, contained the following: These letters referred to the note in suit, and to no other debt to the plaintiff.
If, upon these facts, the plaintiff was entitled to recover, judgment was to be entered for him in a sum named, and interest from the date of the writ; otherwise, judgment for the defendant.
Judgment affirmed.
C. L. Gardner, for the plaintiff.
C. A. Merrill, for the defendant.
The assurances contained in the two latest...
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...made by a bankrupt to his creditor, was held not a sufficient new promise to revive the debt. [Meech v. Lamon, 103 Ind. 515.] In Elwell v. Cumner, 136 Mass. 102, a debtor in bankruptcy wrote to his creditor as follows: "I shall pay you all I owe you with interest, but at this time I cannot.......
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Coe v. Rosene
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Pearsall v. Tabour
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