Fraley v. Kelly

• Decision Date: 30 June 1872
• Citation: 67 N.C. 78
• Court: North Carolina Supreme Court
• Parties: JESSE E. FRALEY v. JAMES A. KELLY.

67 N.C. 78

JESSE E. FRALEY

v.JAMES A. KELLY.

Supreme Court of North Carolina.

June Term, 1872.

Where, in an action upon a bond, the defendant pleaded his discharge in Bankruptcy, and the plaintiff replied, alleging promises to pay after the adjudication of Bankruptcy: Held, that evidence of a promise made after the adjudication, but before the discharge, was admissible.

Under our present system of practice, though it is more regular, where suit is brought to recover a debt which would be barred by Bankruptcy but for a subsequent promise to pay, to set forth the new promise in the complaint, yet it will suffice to set up such promise in the reply to an answer alleging Bankruptcy.

In case of a debt barred by a certificate of Bankruptcy, nothing less than a distinct, unequivocal promise to pay, on the part of the defendant, nowithstanding his discharge, will support an action upon the new promise.

[ Hornthal v. McRae, 67 N.C. 21, cited and approved.]

Civil action, tried before Cloud, J., at Spring Term, 1872, of the Superior Court of DAVIE.

The action was brought on a note for $251.88, due March 12th, 1867, and the defendant relied, for his defence, on a discharge in bankruptcy, granted February 17th, 1870. The plaintiff replied, alleging several promises to pay the debt after the defendant was adjudicated a bankrupt, some made before and some after his discharge. The plaintiff offered to introduce evidence of an express promise to pay the note, between the time of the defendant's adjudication and that of his discharge as a bankrupt. Upon objection by the defendant, the evidence was excluded and the plaintiff excepted.

The plaintiff then offered evidence, in substance, as follows: In the Fall of 1870, the defendant offered to sell the plaintiff a mule. The plaintiff replied, “I hold your note and, if we can agree upon the price of the mule, I will credit the note with the price;” and the defendant assented. Plaintiff and defendant agreed to meet the next day, when the price was to be fixed. Defendant failed to go to the place for the meeting, but the plaintiff was there, with the note and a bridle, and remained all day. It was also in evidence that, about the 1st August, 1870, the defendant said to the plaintiff: “Won't you take a good mule towards the debt?” The plaintiff replied, “The money is what I want;” and the defendant then said, “You must wait for your money.” In October, 1870, upon the plaintiff's applying to the defendant again for payment of the note, the latter said, “I don't intend to pay you; you have been talking about suing me and have consulted a lawyer.” The plaintiff then asked him whether that was the only reason he would not pay him, and he replied that it was.

His Honor thereupon intimated an opinion that the plaintiff could not recover, and he submitted to a non-suit and appealed.

??owle and Bailey, for the plaintiff .

Clement, for the defendant .

BOYDEN, J.

In this case there are two questions made upon the ruling of his Honor.

The first, for the rejection of evidence offered on the part of plaintiff, that the defendant, after the filing of his petition, and after being adjudicated a bankrupt, but previous to his discharge, made an express promise to pay the plaintiff's debt. This evidence was objected to by the defendant, and was rejected by the Court. This question has been fully discussed in the Court of Exchequer, in the case of Kirkpatrick v. Tattershall, 13 Ex. Rep., 770 (Meeson and Welsby,) and the unanimous opinion of the Court was delivered by Parke, Baron, that such a promise was binding, and that there was no difference whether made before or after the bankrupt's discharge. In that case, as in this, there was no plea alleging any irregularity, and the only question was, whether, assuming the contract not to be tainted with any illegality, it was valid. The Court say: “There can be no question that a debt, though barred by a certificate, is a sufficient consideration for a new promise to pay. This is a proposition which is established by many cases. It is equally clear, and indeed admitted, that, if the promise is made after the certificate has been obtained, it is binding though there be no other consideration than the old debt; but, it is contended that, if the promise be made before the certificate is obtained, the same rule does not apply; that the old debt is not sufficient, and that to make the promise binding there must be some new consideration for it. And whether the promise be made before or after the certificate, it is agreed it must be distinct and unequivocal, and must be in writing. We are all of opinion that there is no distinction in this respect...