Fleming v. Lullman

• Decision Date: 01 November 1881
• Citation: 11 Mo.App. 104
• Parties: JOHN B. FLEMING, Appellant, v. JOHN C. LULLMAN, ADMINISTRATOR, Respondent.
• Court: Missouri Court of Appeals

11 Mo.App. 104

JOHN B. FLEMING, Appellant,

v.JOHN C. LULLMAN, ADMINISTRATOR, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 1, 1881.

1. A discharge in bankruptcy operates as a discharge of all debts of the bankrupt which were duly scheduled.

2. A new oral promise to pay a debt discharged in bankruptcy, is the only cause of action, and is barred in five years.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

R. M. NICHOLS, for the appellant: The original debt, as evinced by the certificates of deposit, or the original contract, for the purpose of the remedy is the “cause of action,” yet the right to maintain that action arose when the promises was made, not, however, upon the promise but upon the original contract.-- Dusenbury v. Hoyt, 53 N. Y. 521; Marshall v. Cray, 74 Ill. 379; Turner v. Moore, 20 Ohio, 333; Carr v. Hurlbut, 41 Mo. 264; Smith's Ld. Cas. 616; Sands v. Gelston, 15 Johns. 519; Depuy v. Swart, 13 Wend. 135. It is settled in this State that a promise to pay a debt barred by statute of limitations does not create a new contract.-- Carr v. Hurlbut, 41 Mo. 264. Tht a promise by an infant does not create a new contract.-- Highly v. Barron, 49 Mo. 103. That a promise by a discharged indorser does not create a new contract.-- Williams v. Kortsendorffer, 47 Mo. 70.

TAYLOR & POLLARD, with MARTIN & LACKLAND, for the respondent: Where one discharged in bankruptcy subsequently promises to pay his debt, this new promise constitutes the cause of action.-- Fraley v. Kelley, 67 N. C. 81; Field's Estate, 2 Rawle, 357; Watkins v. Stevens, 4 Barb. 74; Stewart v. Reckless, 24 N. J. L. 429; White v. Cushing, 30 Me. 269; Egbert v. McMichael, 9 B. Mon. 45.

BAKEWELL, J., delivered the opinion of the court.

This was a proceeding begun in the probate court to obtain an allowance against the estate of George C. Miller, deceased, on three certificates of deposit. On trial anew in the circuit court the claim was disallowed.

One of the certificates was as follows: “$1,033.09. Banking-House of Miller & Karst, St. Louis, Mo., October 6, 1865.--Fleming & Lockhardt have deposited with us one thousand, thirty-three, and nine one-hundredths dollars, payable to the order of themselves, on return of this certificate, six years after date, with interest at the rate of no per cent per annum. Miller & Karst.” The others were of like tenor.

The evidence was that Miller obtained his discharge in bankruptcy on July 9, 1868. In 1872, he orally promised plaintiff to pay the debt.

The only question presented by the record is a legal one as to the effect of the oral promise. If that promise operated as a waiver of the discharge in bankruptcy, the right of action is upon the certificates of deposit, and the statutory limitation of ten years was, in that case, no bar to the action; but if the cause of action is the new promise, the statute began to run in 1872, and the limitation of five years applies, and the action was confessedly barred at the time the claim was presented.

It would seem that a discharge in bankruptcy is a complete discharge of the debt. Where the debt is barred by the statute of limitations, the new promise merely restores the remedy which had been taken away by the statute. In both cases, it was held proper, under the old system of pleading, to declare on the original promise. Then, if defendant pleaded the statute of limitations, plaintiff replied generally that the cause of action did accrue infra sex annos, and gave evidence, under this replication, of the new promise.

It may be said that this seems to be an anomaly in pleading--that, if the replication sets forth the only enforceable and only real cause of action, and is therefore treated as the real declaration, there seems to be a departure, and the rule of pleading adopted in such cases is not founded on sound reasoning. Such, however, was the rule. 1 Chitty, 54; Sands v. Gelston, 15 Johns. 519; Depuy v. Swart, 3 Wend. 141; 9 Wend. 297.

And perhaps the rule, on examination, will be found not to be so illogical as it may at first appear. Even where the old debt is revived, the better view is, that there is a new cause of action. In assumpsit, the pleading is so general as to admit of any proof that shows an obligation founded on the consideration between the parties as set forth in the declaration. Plaintiff is not restricted in proof as to time and amount, and may recover on any debt corresponding to that declared on. A new promise infra sex annos, introduces no new consideration, and merely establishes the existence of a liability answering to that averred in the declaration. A declaration in assumpsit may be good without the allegation of a promise. The omission is one of form; the law supplies the implied promise by intendment, and the formal defect could be reached only by special...