112 Ind. 398 | Ind. | 1887
The first paragraph of the appellee’s complaint alleges that, on the 3d day of February, 1878, the ap
The second paragraph of the complaint contains substantially the same allegations as the first, except that its allegations as to the new promise of Sylvanus Carey are, in substance, these: “ That to induce the plaintiff to file his judgment, make the necessary proof in bankruptcy and release the lien of his judgment and preferences, and accept ten per cent., the amount agreed upon in the composition agreement, he, the said Sylvanus Carey, would, just as soon as he got able, pay the plaintiff’s claim in full, and that as soon as he got rid of the Landers debt at ten cents on the dollar he would be able; that ho would pa3>- plaintiffs’ judgment in full after he completed his compromise with his creditors.”
In our opinion the first paragraph of the complaint is good. The debt due the appellee was a valid and sufficient equitable consideration for the new promise to pay it. Wills v. Ross, 77 Ind. 1 (40 Am. R. 279); Proctor v. Cole, 104 Ind. 373; 15 Cent. L. J. 386.
The discharge in bankruptcy suspended the original debt-, but did not satisfy it, in whole or in part. The new promise revived the original debt, and the appellee has a right to enforce payment. Wiggin v. Hodgdon, 63 N. H. 39; Lerow v.
The conditional promise was valid and’became enforceable when the contingency named happened — that is, when the appellant became financially able to perform his promise. Way v. Sperry, 6 Cush. 238 (52 Am. Dec. 779, n.); Veasey v. Reeves, 6 Ind. 406.
The second paragraph of the complaint is bad. It is a settled doctrine of equity jurisprudence, that where creditors unite in a composition agreement a secret promise by the debtor to one creditor to pay him more than the others is void. There is no reason why this settled doctrine should not apply to compositions in bankruptcy proceedings. There are, indeed, stronger reasons for its application in such cases than in any other, and the authorities do apply it to compositions in bankruptcy proceedings. Blasdel v. Fowle, 120 Mass. 447; Tirrell v. Freeman, 139 Mass. 297; Woodman v. Stow, 11 Bradw. 613; Austin v. Markham, 10 N. B. Reg. 548; Bean v. Brookmire, 7 N. B. Reg. 568.
In the complaint before us there appears something more than a secret preference, for it appears that the promise was made to induce the creditor to file his claim and agree to the composition, and this was a fraud on other creditors, since it tended to show that the ten per centum was the most that could be realized.
It is no doubt true that the plaintiff might have sued on
The demurrer to the second paragraph of the complaint .should have been sustained.
Judgment reversed.