Nathan v. Leland

193 Mass. 576 | Mass. | 1907

Braley, J.

Before the enactment of the original St. of 1856, c. 18, which by re-enactment is now embodied in R. L. c. 74, § 3,. the oral evidence that the defendant unreservedly agreed to pay the indebtedness as a means of obtaining further credit despite the proceedings in bankruptcy, would have been sufficient to establish the plaintiff’s claim. Pratt v. Russell, 7 Cush. 462. United Society v. Winkley, 7 Gray, 460. The object of the statute is, that by substituting a written for an oral promise, debtors might be relieved from being harassed by vexatious litigation, based on an effort to establish a continuing liability solely by conversations between the interested parties where on one side an attempt was made to hold the debtor notwithstanding his discharge as on a new promise by which he waived its benefit, and on the other to show that beyond a recognition by him of a moral obligation, and a willingness to pay his debt in full, nothing further was understood or undertaken. But before as well as since the statute, to revive a liability which otherwise had been legally discharged, the promise must be definite and unequivocal, and however strongly expressed neither an intention to pay old debts, nor a part payment on account are of themselves sufficient. A promise may be given after the bankruptcy proceedings are instituted, and is enforceable although subsequently a discharge is obtained. Lerow v. Wilmarth, 7 Allen, 463. Merriam v. Bayley, 1 Cush. 77. United Society v. Winkley, ubi supra. Jacobs v. Carpenter, 161 Mass. 16, 20, and cases cited. Heim v. Chapman, 171 Mass. 347. But having obtained a discharge the defendant was relieved from any further liability on a debt which was provable, unless his letters contained a definite agreement to pay the amount. The first two letter’s and the fourth while expressing a willingness and an expectation of financial ability to make payments contain no expression of an absolute undertaking, although the second contains a statement that if certain arrangements result as anticipated there “ will be nothing to prevent my regular payment ... on old account.” If by implication this phrase refers to an oral promise it is not of itself a promise in writing. But the third letter after again referring to his pecuniary efforts, and ability to make payments, distinctly says at the close, “ you are not to regard yourself as in any danger of losing the amount, as long as I hold my present position, because I have promised in time to take care of it, but I must have, time to do it, as it will be done as fast as resources will allow.” As the statute does not extend beyond the requirement of evidence of a continuing promise in some writing signed by the debtor or by his authority, no precise form of statement is necessary, and the intention and obligation of the debtor must be gathered from the phraseology he chooses to use. By the language employed the defendant stated positively that he had undertaken and then undertook to liquidate the debt, and as this acknowledgment constitutes a distinct and unqualified promise his first, second and third requests for rulings were refused rightly. Cook v. Shearman, 103 Mass. 21. Bigelow v. Norris, 139 Mass. 12, 13. Custy v. Donlan, 159 Mass. 245, 246. Champion v. Buckingham, 165 Mass. 76, 79.

In promising to pay the remainder by monthly payments the measure of the defendant’s liability was not diminished although as the court correctly ruled in accordance with his fourth request only the instalments which were in arrears at the date of the writ could be recovered. Gillingham v. Brown, 178 Mass. 417, 422.

The exceptions must be overruled, and in accordance with the agreement of the parties judgment is to be entered for the plaintiff on the finding.

So ordered.