Holt v. Akarman

• Decision Date: 03 March 1913
• Citation: Holt v. Akarman, 84 N.J.L. 371, 86 A. 408 (N.J. 1913)
• Court: New Jersey Supreme Court
• Parties: SUSAN H. HOLT, EXECUTRIX OF THE LAST WILL AND TESTAMENT OF FRANK HOLT, DECEASED, PLAINTIFF IN ERROR, v. JOHN N. AKARMAN, DEFENDANT IN ERROR

86 A. 408

84 N.J.L. 371

HOLT

v. AKARMAN.

Court of Errors and Appeals of New Jersey.

March 3, 1913.

Error to Supreme Court.

Action by Susan H. Holt, executrix, against John N. Akarman on a promissory note. From a judgment of nonsuit, plaintiff brings error. Affirmed.

Lum, Tamblyn & Colyer, of Newark, for plaintiff in error.

Bourgeois & Coulomb, of Atlantic City, for defendant in error.

KALISCH, J. The writ of error brings under review a judgment of nonsuit granted by the trial judge of the Essex county circuit court, sitting without a jury.

The plaintiff brought her action against the defendant to recover $2,500 upon a promissory note made and given by the defendant to the plaintiff's testator and in the payment of which the defendant made default. The defendant, besides pleading the general issue, pleaded in bar of the plaintiff's action that before the commencement of her suit he (the defendant) had been adjudicated an involuntary bankrupt, and that the claim of the plaintiff's testator was duly scheduled by him, and his certificate of discharge in bankruptcy. The plaintiff's replication to this plea was to the effect that after the defendant became and was a bankrupt and was discharged, the defendant in writing signed by him promised to pay to the plaintiff's testator the amount of said promissory note. At the trial the plaintiff was permitted, without objection, to amend his replication by adding thereto the allegation that after the defendant's adjudication, but before his discharge, he likewise promised to pay the plaintiff's testator the amount of said promissory note. The plaintiff then produced and offered in evidence two letters written by the defendant to the plaintiff's testator, one between the date of the adjudication and discharge, and the other after the granting of the certificate of discharge to the defendant, in both of which letters it was contended by the plaintiff the defendant had promised the plaintiff's testator to pay the debt represented by the promissory note. To the offer of the letter in evidence written by the defendant between the adjudication and defendant's discharge, the defendant objected; but the court admitted it subject to the objection made and reserving the determination of its competency and effect. Both sides having rested, Judge Adams held that by virtue of section 8 of an act, entitled "An act concerning frauds and perjuries" (2 Comp. Stats. 2616), the promise in writing in order to be effectual must be made after the granting of the discharge and hence excluded from consideration the letter objected to, and further held that the letter written by the defendant after his discharge did not contain an absolute promise to pay.

The result reached by the learned trial judge was correct. That part of the letter relied on by the plaintiff in error as containing the promise to pay reads: "Just as soon as my counsel tells me my case is all cleaned up I will place a policy of $2,500 on my life in your favor, and as soon as I can get back in harness again will do all I can to pay you up. In the meantime I beg of you to be patient." Giving to the language used the broadest meaning, it obviously falls short of expressing an absolute promise to pay. The force of it is to convey the writer's intention some time in the future to enter into an obligation to pay the debt; but even that intention is made contingent upon the happening or nonhappening of certain events. "The expression of intention to do a thing is not a promise to do it. An intention is but the purpose a man forms in his own mind; a promise is an express undertaking, or agreement to carry the purpose into effect." Stewart v. Reckless, 24 N. J. Law, 430.

In Whyte v. McGovern, 51 N. J. Law, 360, 17 Atl. 959, Dupue, J., said: "Nothing less than an express promise to pay can renew or revive the bankrupt's liability, and by statute the promise must be put in writing and signed by the party to be charged therewith." "The liability of a bankrupt for a debt from which he has been discharged cannot be renewed by implication." Colton v. Depew, 60 N. J. Eq. 458, 46 Atl. 728, 83 Am. St. Rep. 650.

In Kirkpatrick v. Tattersall, 13 Mees. & W., Baron Parke, in commenting upon the nature of a binding promise made by a bankrupt, on page 769, says: "But then the promise must be one which binds the bankrupt personally to pay, notwithstanding his certificate; it must be a promise that he, and not his estate, would pay; for the mere acknowledgment of a debt, though Implying a promise to pay, would amount to no more than an account stated, and, though in writing, would be a promise which the certificate would bar." And on page 770 the learned Baron further says: "The only remaining question is whether this promise is distinct and unequivocal, binding the bankrupt personally to pay notwithstanding the certificate and is so expressed in the agreement."

This appears to be the leading case on this subject in England, and it has been generally followed by the courts of this country. It is true that in that case the written promise was made three days before the granting of the certificate of discharge, and therefore it has been indiscriminately cited to support the contention that a written promise made between the date of the adjudication and the date of discharge is as effectual as if made after the discharge. Undoubtedly the case so holds. But the reason for this is to be found in the statute which underlies it. We are thus brought to a consideration of the legality of the action of the trial judge in excluding the letter containing the alleged promise to pay sent by the defendant after his adjudication and before his discharge to the testator of the plaintiff in error.

At common law a verbal promise to pay by a bankrupt after his adjudication, whether made before or after his discharge, was effectual and revived the debt. And this continued to be so until the enactment of the Bankrupt Act, 6 Geo. IV, c. 16. Evan's Stats, vol. 4, p. 454. The 131st section of this act provides: "That no bankrupt after his certificate shall have been allowed under any present or future commission shall be liable to pay or satisfy any debt, claim or demand, upon any contract, promise or agreement made or to be made after the suing out of the commission unless such promise, contract or agreement be made in writing, signed by the bankrupt, or by some person thereto lawfully authorized."

It is obvious that this statute expressly sanctions the making of such promise, contract, or agreement, before the granting of the certificate. Its effect was to require a more solemn act than a mere verbal promise. It left the common law unaltered in so far as to permit such promise, contract, or agreement to be made before the granting of the certificate, but required that the evidence of such promise, contract, or agreement be in writing signed by the bankrupt or his authorized agent. Bearing this in mind, it at once becomes clear why Baron Parke, in Kirkpatrick v. Tattersall, supra, said that it was immaterial whether the promise was made before or after the granting of the certificate, it was effective so long as it was a written express promise to pay notwithstanding the granting of the certificate.

It also must not be overlooked that the English statute was a part of the Bankrupt Act and is...