Torrey v. Kraus

• Decision Date: 14 February 1907
• Citation: 43 So. 184,149 Ala. 200
• Parties: TORREY v. KRAUS.
• Court: Alabama Supreme Court

43 So. 184

149 Ala. 200

TORREY v. KRAUS.

Supreme Court of Alabama

February 14, 1907

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by J. B. Torrey against D. Kraus. Judgment for defendant, and plaintiff appeals. Affirmed.

Inge &amp Ambrecht, for appellant.

R. W Stoutz, for appellee.

DENSON J.

The plaintiff declared on a promissory note for $175, executed on the 18th day of October, 1899, by the defendant, payable to McMillan Bros., 90 days after date, which note, it is averred, was duly assigned to the plaintiff. The defendant pleaded a discharge in bankruptcy in bar of the action. The plaintiff replied that after the defendant had been adjudged a bankrupt, and after being discharged, the defendant promised to pay the debt for which the suit was brought as soon as he became able, and averred in the replication that "the defendant is now able to pay the debt." Issue was joined on the replication, and trial had thereon, but at the conclusion of the evidence, on the defendant's motion, the court excluded "the evidence having reference to advances of loans, because it is not property and does not show an ability to pay, but only an ability to borrow."

It is the settled doctrine of this court, supported by adjudications of the courts of other jurisdictions, that after a debtor has been adjudicated a bankrupt he may, by a new promise to pay the original debt, if clear, distinct, and unequivocal, become liable therefor in an action at law; and the creditor may sue directly on the new promise, or, at his election, on the original debt, and reply the new promise to a plea setting up the discharge in bankruptcy. Wolffe v Eberlein, 74 Ala. 99, 49 Am. Rep. 809; Griel v. Solomon, 82 Ala. 85, 2 So. 322, 60 Am. Rep. 733; Kraus v. Torry (Ala.) 40 So. 956, and cases there cited. In Griel v. Solomon, supra, it is said: "Such a promise may be either absolute, or it may be conditional. But, if dependent on a condition or contingency, this fact must be stated by the pleader; and it must be averred and proved that the condition has been performed, or the contingency has happened. A promise to pay so soon as the bankrupt is able is a valid condition, not void for uncertainty, and is so held generally by the authorities. But, to be available, the promise must be averred in the proper form, and satisfactory proof adduced of the defendant's ability to pay; that is, of the fact that he has sufficient property or means to pay." Mason v. Hughart, 9 B. Mon. (Ky.) 480; Hilliard on Bankruptcy, 226; Kraus v. Torry (Ala.) 40 So. 956.

When the case was here on a former appeal, we said, through Dowdell, J.: "That the defendant may borrow money is not alone sufficient to show his ability to pay his debts; for he might borrow on the bare face of his word and promise, as many good men have done, without owning any property whatever. This is not what the law means in such a case, when speaking of his ability to pay, coupled with his promise to pay when he was able; but, as stated in the authority above it means that he has sufficient property or means to pay. Proof of ability to borrow might be competent as a circumstance in evidence for the consideration of the jury, in determining whether the defendant had sufficient property or means wherewith to pay, but not of an ability to pay without such property or means. The trial court seems to have proceeded upon the theory that ability to borrow was evidence of ability to pay. This theory was erroneous." Kraus v. Torry (Ala.) 40 So. 956. There was no...