Merchants' Protective Ass'n v. Popper
| Decision Date | 08 February 1922 |
| Docket Number | 3642 |
| Citation | 59 Utah 470,204 P. 107 |
| Parties | MERCHANTS' PROTECTIVE ASS'N v. POPPER |
| Court | Utah Supreme Court |
Appeal from District Court, Third District, Salt Lake County; Wm. M McCrea, Judge.
Action by the Merchants' Protective Association against M Popper. From judgment for defendant, plaintiff appeals.
REVERSED AND REMANDED, with directions.
Chris. Mathison, of Salt Lake City, for appellant.
Clawson & Elsmore, of Salt Lake City, for respondent.
The plaintiff commenced this action against the defendant to recover judgment upon a promissory note. The complaint is in the usual form in such actions, alleging a payment, however, of $ 6.50 and praying judgment for the remainder due on the note, with attorney's fees and interest as provided therein.
The defendant, in his answer, "admits the execution and delivery of the note sued upon, and that he has paid $ 6.50 to the plaintiff." After denying "every other allegation of plaintiff's complaint," the defendant averred that on June 1, 1916, he was indebted in the sum of $ 450, from which debts he was "discharged in bankruptcy," and that "among which debts so discharged was a Nord Clothing Company debt, a T. H. Nott debt, and an Electa Hemingway debt." The defendant then sets forth the facts respecting certain garnishment proceedings in which his wages were "unlawfully and unjustly" garnished by plaintiff, and that in connection therewith certain false and fraudulent statements and representations, stating them in detail, were made by plaintiff to the defendant, which statements defendant believed, and upon which he relied; "that the defendant, so relying upon and believing said false statements and misrepresentations, executed the note sued upon." The defendant further averred "that the execution and delivery of said note was obtained by the plaintiff and its said agent by means of undue influence and duress." As a further defense the defendant averred "that the said note sued upon was issued without any consideration whatever."
In view of the conclusions reached, we have set forth the averments of the answer in general terms only.
The plaintiff produced in evidence the note in suit, which we have set forth in full:
[Signed] M. Popper."
The case proceeded to trial to a jury upon the foregoing issues.
At the trial the plaintiff, after introducing the note, also produced evidence which tended to show that the consideration for which the note in suit was given was as follows: The Hemingway claim, which amounted to $ 11; the Nord Clothing Company claim for $ 104.98; the T. H. Nott claim for $ 12.35, and $ 6.50 costs in the garnishment proceedings--all of which claims, omitting the amounts, including the $ 6.50, are referred to in defendant's answer; that the several claims aggregated the sum of $ 134.83, and that the balance of the note was made up of accrued interest; that the condition in the note waiving interest was written therein if the defendant would pay the amounts as stated in the condition; that the several claims referred to had been discharged in the bankruptcy proceedings referred to in defendant's answer, but that he had agreed to pay said claims notwithstanding his discharge, and to evidence his promise had executed the note in question.
The defendant admitted the execution of the note, but denied that he had agreed to pay the claims referred to, or any of them. He denied that he executed the note for the purposes stated by the plaintiff. He testified that he was induced to execute the note by reason of the statements and misrepresentations of the plaintiff. The defendant, however, insisted at the trial, and now insists, that the note was not given as a new promise to pay the claims before referred to, or any of them. There was also some evidence on behalf of defendant respecting plaintiff's misrepresentations and conduct in the matter which he insisted misled him and induced him to execute the note in question. The evidence in that regard was, however, not very specific.
After the evidence was all in the court instructed the jury to disregard the defenses of fraud, misrepresentation, and duress, and submitted the case to them upon the issue of want of consideration.
The court correctly charged the jury that the original debts constituted a sufficient consideration for a new promise to pay them, and that a new promise to pay a discharged debt must be clear and unequivocal to pay the particular debts which were discharged in bankruptcy, and that the debts covered by a new promise must be identified to be those that were discharged in the bankruptcy proceedings. Such, no doubt, is the law. See Zavelo v. Reeves, 227 U.S. 625, 33 S.Ct. 365, 57 L.Ed. 676, Ann. Cas. 1914D, 664, 29 Am. Bankr. Rep. 493; 1 Collier Bankruptcy, 449; 3 Remington, Bankruptcy, §§ 2714 to 2724. The promise may, however, be oral, and no particular form is necessary. The following have been held sufficient: "I will pay;" "I will settle;" "I will see that you are no loser by me;" "she will have her pay;" "I am willing and able to pay.' Brandenberg, Bankruptcy (4th Ed.) § 1538. The promise must, however, refer to the debt that has been discharged.
The court in this case further charged the jury:
"In order that you may find a verdict for the plaintiff you must find by a fair preponderance of the evidence: First, that the claims of T. H. Nott, Electa Hemingway, and the Nord Clothing Company, which had theretofore been discharged in bankruptcy, had not been paid prior to the execution of said note; second, that at the time of the execution of the note the plaintiff expressly and unequivocally agreed to accept and defendant expressly and unequivocally agreed to make and deliver the note in settlement of, or as a new promise to pay, those specific claims, and no others; third, that the note correctly states the amount then unpaid upon those claims. and is not in excess of the amount unpaid upon those specific claims at the date of said note."
The plaintiff excepted to each of the propositions contained in that instruction separately, and also excepted to the instruction as a whole.
The plaintiff vigorously insists that the instruction does not correctly state the law. It will be observed that the instruction starts out with the statement, "In order that you may find a verdict for the plaintiff you must find," etc. The whole case, so far as the plaintiff is concerned, is therefore based upon this instruction, and, unless the jury found all three of the propositions in favor of plaintiff, it could not recover.
The first proposition is manifestly faulty because no claim was made in either the pleadings or evidence that the three claims, or any of them, had been paid "prior to the execution of the note." There was evidence that other claims not discharged in bankruptcy proceedings were paid by the defendant, but those, three claims, he specifically alleged in his answer, were discharged in those proceedings. That error in the charge is, however, not so material, and the plaintiff does not seriously insist upon it.
The error in the second proposition is, however, more serious. The jury is there charged that, unless they find "that at the time of the execution of the note the plaintiff expressly and unequivocally agreed to accept and the defendant expressly and unequivocally agreed to make and deliver the note in settlement of, or as a new promise to pay, those specific claims, and no others," plaintiff could not recover. (Italics ours.) It is not the law that the promisee must expressly and unequivocally accept the new promise. The acceptance may be implied, and the rule of law that is usually and ordinarily applied is that acceptance may be implied (1) if the promise is beneficial to the promisee, and (2) if he acts upon the promise. In no case, however, is the law to the effect that the promisee must expressly accept the promise. If such were the law acceptance could rarely be established, since a promisee does not in express terms accept, but does so by merely receiving the evidence of the promise, if in writing and by afterwards acting upon it. True it is that, where conditions are imposed in the promise--that is, if the promisor offers to pay upon certain conditions--then it is necessary that the promisee accept the conditions. But even then it is not the law that it must be expressly done or in express terms. In view of the foregoing statements of the law in the instruction the court in effect directed the jury to find for the defendant. All that the jury could do was to find for the defendant, since there was not a word of evidence before them that the plaintiff had expressly accepted the defendant's promise as that promise was evidenced in the note sued upon, although, by reason of plaintiff's conduct after the promise was made in the note, there was indirect evidence beyond a reasonable doubt that it...
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