Oglesby v. Trust Co. Of Ga.

• Court: Georgia Court of Appeals
• Writing for the Court: SUTTON
• Citation: Oglesby v. Trust Co. Of Ga., 47 Ga.App. 749, 171 S.E. 393 (Ga. App. 1933)
• Decision Date: 21 October 1933
• Docket Number: No. 23195.,23195.
• Parties: OGLESBY. v. TRUST CO. OF GEORGIA.

47 Ga.App. 749

171 S.E. 393

OGLESBY.

v.TRUST CO. OF GEORGIA.

No. 23195.

Court of Appeals of Georgia, Division No. 2.

Oct. 21, 1933.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by the Trust Company of Georgia, executor, against R. W. Oglesby. Judgment for plaintiff, the superior court overruled defendant's certiorari, and defendant brings error.

Reversed.

Wm. S. Shelter, of Atlanta, for plaintiff in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

On November 1, 1930, defendant entered Into a lease contract with the plaintiff executor. He paid no part of the rental called for in the lease, and on February 18, 1932, plaintiff brought suit against him in the municipal court of Atlanta, to recover the same, which amounted to $120. The defendant pleaded bankruptcy, setting up that on October 30, 1931, he was adjudicated a bankrupt, that the amount due the plaintiff under the lease was duly scheduled, and that on January 30, 1932, he was discharged as a bankrupt. It appeared from the evidence that on November 25,

1931, the defendant made an oral promise to pay this indebtedness to an agent of the plaintiff named McCullough, and that, pursuant to this promise, the defendant gave to this agent the following writings, directed to his employer: "Mr. Long: Please pay to Mr. L. L. McCullough $30.00 out of my December salary and oblige. * * * On or before January 20 pay $30.00 and on or before February 20, $30, and on or before March 20,

1932, $30.00." All of said writings were signed by the defendant. The case was tried before a judge of said court without the intervention of a jury, and a judgment was rendered in favor of the plaintiff. The defendant excepts to the refusal of a new trial. Held:

1. "No promise made after discharge In bankruptcy to pay a debt provable in bankruptcy, and from the liability of which the debtor was discharged, shall be valid or binding upon such debtor or promisor unless the same shall have been made in writing, signed by the party making the same, or to be charged therewith, or by some one by him duly authorized." Civ. Code 1910, § 4384.

2. While a promise by a debtor, made after his adjudication as a bankrupt but before his discharge, will not be impaired by the subsequently acquired discharge, as the discharge relates to the adjudication (Dicks v. Andrews, 132 Ga. 601, 64 S. E. 788, 16 Ann. Cas. 1070, Bank of Elberton v. Vickery, 20 Ga. App. 96, 92 S. E. 547), the promise must be clear, express, distinct, unequivocal, and without qualification or condition, before it will be enforceable against the bankrupt. Moore v. Trounstine, 126 Ga. 116, 54 S. E. 810, 7 Ann. Cas. 971.

3. Bankruptcy of a debtor does not extinguish the debt, but merely operates as a bar to an action thereon. Fairmont Creamery Co. v. Collier, 21 Ga. App. 91 (1), 94 S. E. 56. In order to revive a...