Lanier & Co. v. Tolleson

• Citation: 20 S.C. 57
• Court: South Carolina Supreme Court
• Decision Date: 28 September 1883
• Parties: LANIER & CO. v. TOLLESON.

20 S.C. 57

LANIER & CO.

v.TOLLESON.

Supreme Court of South Carolina.

Sept. 28th, 1883.

1. In action against a discharged bankrupt on a new promise to pay a debt contracted before the bankruptcy, a distinct, positive and unequivocal promise to pay must be shown to have been made by defendant after his discharge in bankruptcy; neither partial payment nor expression of an intention to pay amount to such promise.

2. Such a promise is sufficient, although only verbal, and made upon a condition, if the condition is shown to have been performed.

3. It is also sufficient, notwithstanding the plaintiffs' written consent to defendant's discharge in bankruptcy; for such discharge did not operate as an extinguishment, payment or release of the debt.

4. An exception not considered because couched in terms too general.

5. After a verdict responsive to the issues raised by the pleadings, the Circuit judge, on motion for new trial, is not bound to pass upon matters which should have been presented by requests to charge but were not; and his refusal to grant a new trial does not involve any ruling upon the grounds so taken in support of the motion.

Before WALLACE, J., Spartanburg, October, 1882.

Action by Lucius L. Lanier & Co. against Alfred Tolleson. The opinion states the case.Mr. J. S. R. Thomson, for appellant.

Mr. Stanyarne Wilson, contra.

The opinion of the court was delivered by

MR. JUSTICE MCIVER.

This action, which was commenced February 10th, 1882, was brought to recover the amount due on two promissory notes, given by defendant to plaintiffs, one payable on June 9th, and the other on July 9th, 1877, prior to the discharge of the defendant in bankruptcy, the plaintiffs relying upon a promise alleged to have been made subsequent to such discharge.

It appeared in evidence that the defendant was adjudged a bankrupt on March 6th, 1878, and was duly discharged on October 23d, 1879, with the written consent of plaintiffs to such discharge. L. L. Lanier, one of the plaintiffs, was introduced as a witness, and testified that after defendant had filed his petition in bankruptcy, he paid him on account of said notes $20, and that after his discharge, to wit, on October 7th, 1881, the defendant paid him the further sum of $5, and at the same time “promised to pay them more the next time that he should see L. L. Lanier, one of the plaintiffs herein,” and that in December, 1881, he promised to pay the balance due on said notes, “as soon as he was able.”

The plaintiffs also put in evidence two letters of defendant written while the proceedings in bankruptcy were pending, in one of which, after asking plaintiffs to sign their consent to his discharge, he uses this expression: “I hope to live to see the day when my friends will not regret this act of kindness,” and in the other, after asking plaintiffs to forward proof of their debt to the register in bankruptcy, he says: “I hope some day to be a man again, and will not forget my friends.” None of this testimony was objected to at the trial, and when the letters were offered in evidence “plaintiffs' counsel stated to the jury that these letters were introduced, not to prove a promise, (as those promises only could bind defendant that were made after his discharge in bankruptcy October, 1879,) but only to show that the defendant had always intended to pay debts of this kind, and thus corroborate the testimony of Lanier.” The tax returns of defendant, dated June 30th, 1882, were then introduced, showing personal property to the amount of $380, and real estate assessed at $2,500.

Defendant put in evidence his discharge in bankruptcy, and testified that he had never made the promise testified to by Lanier, and had not paid him the $5, as alleged, on the said notes; that he was auditor of the county for several years prior to 1876, and that his family consisted of himself, his wife and grandson, and that defendant's health was bad. M. A. Newland and James R. Tolleson were also offered as witnesses to corroborate defendant as to his version of the conversation between him and Lanier, in which the latter alleged the promise relied upon was made, and as to the alleged payment of the $5 to Lanier; but he offered no testimony as to his inability to pay the note at the time the action was commenced.

At the close of the testimony the defendant's counsel requested the Circuit judge to charge the jury “that the letters of Tolleson, put in testimony, do not constitute a new promise to pay the notes,” to which the judge replied “that he considered that a question of fact for the jury, having told them what sort of a promise would bind defendant, to wit, that it must be a distinct, positive and unequivocal promise to pay, made after his discharge in bankruptcy, and that neither partial payment nor expression of an intention to pay, did amount to such promise. His Honor then turned to plaintiffs' counsel, in the presence of the jury, and asked him, did he claim that the letters constituted a promise to pay, and he replied that he did not. His Honor further charged that the question whether or not defendant made the promise to plaintiffs alleged in the complaint must be determined by them from all the testimony. That this question of fact must be determined from the testimony; that if the jury believed the testimony for the defense, the verdict must be in his favor, but if they believed the testimony for the plaintiffs they should find for the plaintiffs.” In response to an inquiry from the court before the jury retired, defendant's counsel stated that he did not desire to make any other requests to charge.

The jury having found for the plaintiffs, the defendant moved for a new trial on the grounds “that the verdict was contrary to both law and the testimony; that on a recovery on a new promise it was essential for plaintiffs to show that the promisor was more able to pay at time of suit than when the promise was made; that such a promise to pay was to be governed or controlled or modified by the condition and wants of the defendant and his family, and that a promise to pay when able was not such a promise to pay as would support an action like this.” The motion for a new trial was refused, the judge ruling “that if the testimony for the plaintiffs was believed by the jury, it was sufficient to sustain their verdict. He further ruled that the testimony whether or not defendant was able to pay had gone to the jury; that they were the proper judges of the matter, and he was not disposed to disturb their finding. He remarked, by way of illustration, in refusing the motion, that he thought a promise to pay when able resembled a promise of an administrator to pay when in funds, but he did not take this as a reason for refusing the motion on this ground. In refusing the motion he also stated inferentially as much as is contained in ...