152 S.W.2d 1044 | Mo. | 1941
Lead Opinion
W.H. Durham, defendant nisi, appeals from a judgment for $317.03, with interest, in favor of Maude Crandall in an action involving an oral promise made by defendant after the effective date of his discharge in bankruptcy to pay his certain note payable to plaintiff. The Kansas City Court of Appeals certified the case here [Mo. Const. Art. VI, Amend. 1884, Sec. 6] on the ground its affirmance of the judgment [141 S.W.2d 148] conflicted with the decision of the Springfield Court of Appeals in Chitwood v. Jones, 56 S.W.2d 147. Defendant pleaded resjudicata. Our conclusion, based on other reasons, differs from that of the Court of Appeals.
Maude Crandall is the payee and owner of a $200, 8%, one year, negotiable note, dated September 28, 1931, signed by W.H. Durham and Mrs. W.H. Durham, and bearing total credits of $6. Defendant was adjudged a bankrupt on January 28, 1937, and on May 26, 1937, received his discharge in bankruptcy. Under the record made, said discharge was effective to release defendant from said debt were it not for defendant's oral promise to plaintiff to pay said note.
Plaintiff, on December 17, 1937, instituted an ordinary action on the note in the justice of the peace court against said makers. Defendant's separate answer pleaded his final discharge in bankruptcy in defense. Upon trial, judgment in the justice court went against said makers. Defendant appealed. Upon trial in the circuit court, the court sustained defendant W.H. Durham's demurrer to the evidence and judgment was entered (September[1045] 1, 1938) in favor of plaintiff against Mrs. W.H. Durham and against plaintiff in favor of W.H. Durham. Plaintiff did not appeal and the judgment became final.
On November 8, 1938, plaintiff instituted the instant action against defendant. Her petition contained allegations setting up defendant's indebtedness on the note, his adjudication as a bankrupt *242 and his final discharge in bankruptcy as aforesaid; and also alleged that between the date of the adjudication of defendant's bankruptcy and the first meeting of the creditors in bankruptcy defendant agreed, in consideration of plaintiff agreeing to not appear at said creditors' meeting and to not present her claim in bankruptcy and to not oppose defendant's discharge in bankruptcy, to pay said note; that plaintiff performed her part of said agreement; and prayed judgment on said note. Upon trial, plaintiff had judgment and defendant perfected this appeal.
[1] At the time of defendant's bankruptcy proceedings, the bankruptcy law provided that: "A person shall be punished by imprisonment for a period of not to exceed five years upon conviction of the offense of having knowingly and fraudulently . . . received or attempted to obtain any money or property, remuneration, compensation, reward, advantage, or promise thereof from any person, for acting or forbearing to act in bankruptcy proceedings. . . ." [44 Stat. at L., p. 665, sec. 29(b) (5), 11 U.S.C.A., p. 474, sec. 52; 9 Remington on Bankruptcy, p. 917.] Plaintiff's pleaded agreement to forbear opposing defendant's discharge in bankruptcy was contrary to the declared public policy, a fraud upon the act and unenforceable. [Consult, among others, Smith v. Langmaack,
[2] Defendant's discharge in bankruptcy released him from the obligation of plaintiff's debt, not in the sense that the debt was paid or extinguished but in that it afforded him a complete legal defense to plaintiff's action if he availed himself of it, unless he thereafter waived said release by, for instance, promising to pay the debt, the debt, not being extinguished or cancelled, having sufficient life to furnish the consideration for the new promise. [6 Am. Jur., p. 802, sec. 484, p. 830, sec. 530; 8 C.J.S., p. 1490, sec. 559, p. 1570, sec. 583; 7 C.J., p. 395, sec. 704, p. 412, sec. 732; 7 Remington on Bankruptcy (5 Ed.), secs. 3499, 3500, 3502; Collier on Bankruptcy (4 Ed.), secs. 534, 574; Black on Bankruptcy (4 Ed.), secs. 1176, 1235.]
Much has been written on whether the creditor should declare on the new promise or the original obligation. Judgment may go against the debtor in an action on the original debt if he does not avail himself of the defense. However, a right is legally created by the new promise, especially if supported by an independent consideration; but if there be merely a new promise unsupported by any new consideration, resort to the original debt is necessary for the consideration. "The new promise need not be pleaded nor proved in the first instance. To do so would be to anticipate a defense. The bar of the discharge is merely matter of defense to be pleaded. If pleaded, then the new promise is in turn to be pleaded, by way of *243
avoidance." [7 Remington on Bankruptcy, p. 765, sec. 3512. Sec also 8 C.J.S., p. 1582(b).] 1 Williston on Contracts (1936 Ed.), sec. 196, discusses the issue and states "It has been continuously recognized, however, that this method of pleading is anomalous and that the real basis of the right is the new promise." [6 Am. Jur., p. 834, sec. 535.] There are cases to the effect the creditor may elect what method to pursue. [7 C.J., p. 413, nn. 38, 39; Black, Ibid., sec. 1244.] In Donnell v. England,
[3] Plaintiff first sued in the justice court where technical rules of pleading are not rigidly observed. From plaintiff's petition, defendant's plea of his discharge in defense and the judgment against defendant in the justice court, we think it apparent that the same issues attempted to be presented in the instant action were there litigated. This is confirmed by the justice's record, which recites (see Garnett v. Stacy,
The judgment is reversed. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.
