Nathan v. Leland

• Decision Date: 03 January 1907
• Citation: 193 Mass. 576,79 N.E. 793
• Parties: NATHAN v. LELAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 576

79 N.E. 793

NATHAN v. LELAND.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1907

COUNSEL

Wm H. Brown, for plaintiff.

Malachi L. Jennings, for defendant.

OPINION

BRALEY, J.

Prior to the enactment of the original St. 1856, p. 11, c. 18 which by re-enactment is now embodied in Rev. Laws, c. 74, § 3, the oral evidence that the defendant unreservedly agreed to pay the indebtedness as a means of obtaining further credit despite the proceedings in bankruptcy, would have been sufficient to establish the plaintiff's claim. Pratt v. Russell, 7 Cush. 462; United Society in Canterbury v. Winkley, 7 Gray, 460. The object of the statute is, that by substituting a written for a verbal promise, debtors might be relieved from being harassed by vexatious litigation, based on an effort to establish a continuing liability solely by conversations between the interested parties where on one side an attempt was made to hold the debtor notwithstanding his discharge as on a new promise by which he waived its benefit, and on the other to show that beyond a recognition by him of a moral obligation and a willingness to pay his debt in full, nothing further was understood or undertaken. But before as well as since the statute, to revive a liability which otherwise has been legally discharged the promise must be definite and unequivocal, and however strongly expressed neither an intention to pay old debts, nor a part payment on account are of themselves sufficient. A promise may be given after the bankruptcy proceedings are instituted, and is enforceable although subsequently a discharge is obtained. Lerow v Wilmarth, 7 Allen, 463, 83 Am. Dec. 701; Merriam v. Bayley, 1 Cush. 77, 48 Am. Dec. 591; United Society in Canterbury v. Winkley, ubisupra; Jacobs v. Carpenter, 161 Mass. 19, 20, 36 N.E. 676 and cases cited; Heim v. Chapman, 171 Mass. 347, 50 N.E. 529. But having obtained a discharge the defendant was relieved from any further liability on a debt which was provable, unless his letters contained a definite agreement to pay the amount. The first two and the fourth while expressing a willingness and an expectation of financial ability to make payments contain no expression of an absolute undertaking, although the second contains language that if certain arrangements result as anticipated there 'will be nothing to prevent my regular payments * * * on your account.' If by implication this phrase refers to an oral promise it is not of itself a promise in writing. But the third letter after again referring to his pecuniary efforts, and ability to make payments, distinctly says at the close, 'You are not to regard yourself in any danger of losing the amount as long as I hold my present position because I...