Traders' Nat. Bank v. Hermer
| Decision Date | 26 January 1920 |
| Docket Number | No. 13486.,13486. |
| Parties | TRADERS' NAT. BANK v. HERMER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
Action by the Traders' National Bank against E. Hermer. Judgment for plaintiff, and defendant appeals, Affirmed.
Ringolsky & Friedman, of Kansas City, for appellant.
Blackmar & Bundschu, of Kansas City, for respondent.
This is an action to recover the balance of principal and interest due on three promissory notes, made and executed by the defendant in favor of plaintiff on various dates prior to December 14, 1915. There was a verdict and judgment in favor of plaintiff, and defendant has appealed.
The execution and delivery of the notes is admitted, and there is no contention as to the amount involved in the suit. The facts show that on said date an involuntary petition in bankruptcy was filed against defendant, and thereafter, on December 24, 1915, plaintiff was duly adjudged a bankrupt; that all of said notes had matured before the date of said adjudication; that plaintiff proved its claim arising out of said notes against the bankrupt estate of the defendant, and received from the trustee of said estate the dividends declared; that the discharge in bankruptcy was made on June 8, 1918. There was evidence tending to show that, between the date of the adjudication of defendant as a bankrupt and the date of the granting of his discharge, the defendant on various occasions and at various times promised plaintiff that he would pay to the respondent the balance due on said notes, which plaintiff had proven against the bankruptcy estate.
At the close of all of the evidence the court overruled defendant's instruction in the nature of a demurrer to the evidence. The sole question presented in this appeal is whether the promise made between the date of defendant's adjudication as a bankrupt and the granting of his discharge in bankruptcy is enforceable. It is well settled that a discharge, while releasing the bankrupt from legal liability to pay a debt that was provable in the bankruptcy, leaves him under a moral obligation that is sufficient to support a new promise to pay the debt. But defendant claims that any promise made before the discharge to pay the debt would be a promise to pay an existing debt for the reason that the old debt is still in existence until the discharge. Defendant likens the last promise to a promise to pay an indebtedness where no bankruptcy proceeding has been started or...
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