Katz v. Moessinger

• Decision Date: 19 May 1884
• Citation: 1884 WL 4360,110 Ill. 372
• Parties: ANDREW KATZv.CATHARINE MOESSINGER, Admx.
• Court: Illinois Supreme Court

110 Ill. 372

1884 WL 4360 (Ill.)

ANDREW KATZ

v.CATHARINE MOESSINGER, Admx.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on writ of error to the Circuit Court of Cook county; the Hon. KIRK HAWES, Judge, presiding.

Messrs. MOSES & NEWMAN, for the appellant:

The new promise of a discharged bankrupt to pay the debt must be distinct, unambiguous and certain. The expression of an intention to pay the debt is not sufficient. There must be a promise before the debtor is bound. Shoekey v. Mills, 71 Ind. 290; Moseley v. Caldwell, 59 Tenn. 208; Randidge v. Lyman, 124 Mass. 361; Stern v. Nussbaum, 77 How. Pr. 489; Dearing v. Moffit, 6 Ala. 776; Stewart v. Reckless, 24 N. J. 427; Church v. Winkley, 73 Mass. 460; Yoxtheimer v. Keyser, 11 Pa. 364.

In St. John v. Stephenson, 90 Ill. 82, it was ruled, as claimed by our instruction which was refused, that the promise must be clear, distinct and unequivocal, citing Allan v. Ferguson, 18 Wall. 1; Porter v. Porter, 31 Me. 169; Merriam v. Bailey, 1 Cush. 77.

The new promise must be an express promise, and must be absolute and unconditional. If there is anything like a condition in the promise, it must be removed by testimony, and placed on the footing of an absolute undertaking, to entitle the creditor to a recovery,--as, if the bankrupt should say that he would pay when he was able, the creditor must show an ability to pay. Yates v. Hollingsworth, 5 H. & J. 216; Brown v. Collier, 8 Humph. 510; Mason v. Hughart, 9 B. Mon. 480; LaTourrette v. Price, 28 Miss. 702; Branch Bank v. Boykin, 9 Ala. 320.

As to the right of the surety to bring his action, and the keeping of the judgment on foot for his benefit: Burns v. Parish, 3 B. Mon. 9.

In Brown v. Long, 1 Ired. Eq. 192, (approved of in Hamer v. Douglas, 4 Jones' Eq.) it was held that “such arrangement (assignment of judgment) does not amount to a payment, for to avoid any possible inference of the sort an assignment is taken to a third person, which has been held sufficient to keep the security on foot.” Hodges v. Armstrong, 3 Dev. & Bat. 253; Sherwood v. Collier, Id. 380.

So say the court in Briley v. Sugg, 1 Dev. & Bat. 368:“If a surety had taken an assignment of the judgment against the principal and himself to a stranger, and did not intend satisfaction, then the judgment would not have been extinguished.”

Mr. FRANCIS LACKNER, for the appellee:

Even conceding the new promise to pay was only a promise to pay when the debtor was able, that does not make the promise a conditional one. The words, ““as soon as possible,” or, “as soon as I am able,” are too uncertain to amount to a condition. They do not point to any future event capable of proof. Norton v. Shepard, 48 Conn. 141.

In Cummings v. Gassett, 19 Vt. 308, a judgment was sustained on a promise “that he would pay it as soon as he could,” without showing ability to pay.

But the question came up directly in the case of First Congregational Society v. Mullen, 15 N. H. 520, where the court say: “In the present case the defendant said he had not the money, but would pay as soon as he could. The words following the promise to pay are too uncertain and indefinite to constitute a condition.” However, the same court, in Butterfield v. Jacobs, 15 N. H. 140, states that “where a person, on being applied to for payment of a debt, declares his inability to pay it, but promises to pay it when he shall become able, the happening of the contingency is, in its nature, susceptible of being proved.”

The action in this case was well brought. The judgment was paid. Payment of a judgment extinguishes it, at law, unless an actual assignment is made to a third party, and a surety can keep it alive, if at all, only in equity. Bailey v. Gregg, Dev. & Bat. Eq. 368; Elam v. Rawson, 21 Ga. 141.

The whole transaction virtually amounted to a request on the part of the surety to leave the judgment standing on record, in the hope that there might be opportunity to enforce it. When Moessinger paid the judgments his right of action immediately arose, and nothing further was to be done by him to acquire it. Shepard v. Ogden, 2 Scam. 257.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by Charles Moessinger, against Andrew Katz, to recover money paid by the plaintiff in satisfaction of a judgment rendered against Katz and Moessinger upon two certain promissory notes which the plaintiff had signed as surety for Katz. The declaration contained the common counts, to which the defendant pleaded in bar of the action, first, the general issue; second, a discharge in bankruptcy; and third, the Statute of Limitations of five years. To the second plea plaintiff replied a new promise after defendant was adjudicated a bankrupt, and to the third plea a replication was interposed alleging a promise of the defendant within five years. Issue was joined on these replications, and upon a trial before a jury the plaintiff recovered a judgment for the amount claimed, which was affirmed in the Appellate Court. During the pendency of the cause the death of Moessinger was suggested, and his administratrix was substituted as a party plaintiff, and it is claimed that this was error, because the declaration, as originally filed, alleged that the suit was brought for the use of Schumacher. Before judgment, the declaration was amended, and the name of Schumacher was eliminated from the record, and so far as appears he had no interest whatever in the cause of action, and it was proper, upon the death of Moessinger, the plaintiff in the action, (the only person in whose name the action could be maintained,) to substitute his legal representative,--the administratrix of his estate.

It seems that...