Griel v. Solomon

• Decision Date: 11 May 1887
• Citation: 82 Ala. 85,2 So. 322
• Parties: GRIEL AND ANOTHER v. SOLOMON.
• Court: Alabama Supreme Court

2 So. 322

82 Ala. 85

GRIEL AND ANOTHER v. SOLOMON.

Supreme Court of Alabama

May 11, 1887

Appeal from city court of Montgomery.

Action on common counts against discharged bankrupt.

This action was brought by N. Griel & Bro., suing as partners against "J. F. Solomon," as the defendant's name was written in the summons and complaint, and was commenced on the twenty-sixth January, 1884. The complaint contained only the common counts, each of which alleged an indebtedness accruing "on, to-wit, the twenty-second day of December, 1876." The defendant pleaded in abatement that his name was Jacob Schley Solomon, and that he was never known or called J. F. Solomon, which plea was struck from the file, on motion of the plaintiffs. The plaintiffs then asked leave to amend the complaint, by striking out the "F." in the defendant's name as alleged, and they excepted to the overruling and refusal of said motion. The defendant then pleaded, in short, by consent, non assumpsit, payment, discharge in bankruptcy on the second February, 1878, and the statutes of limitations of three and six years. The plaintiffs took issue on the first and second pleas; to the plea of bankruptcy replied a subsequent promise, which was alleged to have been made "since the discharge in bankruptcy," and a subsequent promise made "after the filing of the petition in bankruptcy;" and to the pleas of the statutes of limitations replied a partial payment, and the defendant's absence from the state. Issue was joined on these several replications.

The account sued on, the correctness of which was admitted by the defendant, showed a balance of $1,421.65 due from him to the plaintiffs on December 22, 1876, and the plaintiffs admitted partial payment thereon, made October 15, 1878, of $335.40. The defendant's discharge in bankruptcy, which was granted February 2, 1878, was admitted; but the record does not show when he was adjudicated a bankrupt, nor when the petition in bankruptcy was filed. The payment of the $335.40 on October 15, 1878, was made by one F. Wolffe, as the agent or friend of the defendant, who testified, as a witness for the defendant, that it was paid and received in full satisfaction of plaintiffs' debt, and a receipt in full given by plaintiffs, which he afterwards delivered to the defendant, who also testified to its contents and loss. The plaintiffs, admitting this payment by Wolfe, denied that they received it, or ever agreed to receive it, in full payment of their claim against defendant. The defendant claimed, also, a credit for $102.35, paid to L. C. Smith as attorney for plaintiffs and other creditors of the defendant, whose claims had been filed in a chancery cause, the object of which was to foreclose a deed of assignment executed by said defendant in December, 1876; and for this purpose offered in evidence a transcript of the record of said chancery cause, containing- First, the original bill filed by Durham, Buckley &amp Co. on behalf of themselves and all other creditors who might come in and prove their debts, asking the removal of the trustee appointed in the deed of assignment, the appointment of a receiver in his stead, and the foreclosure of the assignment; second, the petition of numerous creditors, including plaintiffs, all of whom were represented by F. Wolffe as agent, asking that the receiver (A. R. Bell) might not be allowed to interfere with the possession and management of the assignee; third, the report of said receiver to the court, showing payments made by him on the claims filed; and, fourth, the order approving and confirming the report. The receiver's report showed the several sums paid to the respective creditors or their attorneys; and, among the claims paid to L. C. Smith, as attorney, June 14, 1878, was "N. Griel & Bro $102.35." Smith testified that all the claims represented by him were placed in his hands by said Wolffe to whom he also paid over the money collected; while said Wolffe testified, on cross-examination, that the money had not been paid to him. The plaintiffs objected to the admission of this transcript as evidence, and to each part thereof separately, and duly excepted to the overruling of their objections.

One of the plaintiffs, while testifying as a witness, was asked on cross-examination "if he had not proved up this claim against the defendant's estate in bankruptcy, to which he answered that he had not." The plaintiffs objected to this question and answer, and reserved exceptions to the overruling of their objections. The defendant afterwards produced the proof of said debt as a claim against the bankrupt estate, and the court admitted it as evidence against the objection and exception of the plaintiffs. Each of the plaintiffs, testifying as a witness for themselves, stated that the defendant had made repeated promises to pay their debt "when he was able," or "when he got on his feet again;" some of which promises were made after his adjudication as a bankrupt, but before he had obtained his discharge, and others after his discharge. The court excluded the former promises as evidence, on objection by the defendant, and the plaintiffs excepted. The plaintiffs also offered to prove by one of themselves, testifying as a witness, "that, at the time the account sued on was contracted, he knew that the defendant was in a shaky condition, and the matter was discussed between him and the defendant, and defendant told him that, no matter what might happen to him, [defendant,] he never would let plaintiffs lose anything on him." The court excluded this evidence, on objection by defendant, and plaintiffs excepted. The evidence for the plaintiffs tended to show, also, that they turned over their said claim to said Wolffe, soon after defendant had been declared a bankrupt, and let him control and use it as he saw proper." The plaintiffs introduced, also, evidence showing the defendant's absence from Alabama for several years, and that he was engaged in carrying on business as a warehouseman at Meridian, Mississippi; and this evidence seems to have been admitted without objection.

The above being substantially all the evidence the court charged the jury, among other things, "(1) that the evidence and admissions of the parties had reduced the issues involved in this cause to a single one. That was, had the defendant, after his discharge in bankruptcy, made an absolute, unconditional promise to the plaintiff to pay the debt? That the promise must have been an absolute and unconditional promise. (2) That if a person was indebted and received a discharge in bankruptcy, yet if he, after receiving his discharge, promised to pay the debt, an action might be maintained on that promise, but that such promise must be an absolute, unconditional one; and if the jury believed from the evidence that the only promise made by the defendant in this cause was that he directed the plaintiffs to call at a designated place,and receive some money as a partial payment on the account given in evidence, and that he would pay them the balance due on such account as soon as he was able, that was not such a promise as would revive a debt extinguished by the discharge in bankruptcy, and the plaintiff would not be entitled to recover in this action." The plaintiffs then and there separately excepted to the action of court in giving the above charges.

The plaintiffs requested the court to give the following charge, which the court refused to do, and an exception was reserved to such action of the court: "(1) If the jury believe from the evidence that, after his discharge in bankruptcy, and prior to October 15, 1878, defendant made an express promise to pay the debt, and that on that day he told plaintiffs to go to Stettenheim, and he would pay them some money on account, and that he (defendant) would pay the balance as soon as he was able, then they must find a verdict for plaintiffs."

The following charges were requested in writing by defendant, and given by the court, and plaintiffs reserved an exception as to each: "(1) Before the plaintiffs can recover in this suit, the burden is upon the plaintiffs to show, to the satisfaction of the jury, that the defendant made an absolute and unconditional promise to pay the debt sued on, after his discharge in bankruptcy. (2) If the jury believe from the evidence that Solomon promised to pay the plaintiffs' demand sued on in this case in the event he ever got able to do so, this would not constitute, without more, such an unconditional promise as would entitle the plaintiffs to recover in this action. (3) Even if the jury should believe from the evidence that Solomon did pay or cause to be paid to the plaintiffs $355.40, on account of the debt sued on, on to-wit, the fifteenth day of October, 1878, after the defendant obtained his discharge in bankruptcy, then such partial payment, without more, would not avoid the bar which his discharge in bankruptcy operated against the debt; and upon this state of facts, without more, plaintiffs would not be entitled to recover in this action. (4) If the jury believe from the evidence that the only kind of promise...