Pearce v. Fisher

54 So. 164 | Ala. | 1911

DOWDELL, C. J.

The questions presented by the assignments of error arise out of rulings of the court in respect to defendant’s plea designated as plea A. This plea sets up a discharge in bankruptcy of the defendant. After motion to strike and demurrer to plea being overruled, the plaintiff replied generally, and on this issue the case was tried, resulting in a verdict and judgment in favor of the defendant.

The theory. and contention of the appellant is that, the third count of the complaint being in tort and the damages sought to he recovered not being a provable claim, a discharge in bankruptcy furnishes no defense to said count. The third count is predicated on an alleged negligent performance by the defendant of his contract with the plaintiff, the terms of which are set out, resulting in damages to the plaintiff. It is not disputed that, while the damages claimed are unliquidat-ed, yet they are capable of being rendered such. The damages claimed, although the count is in case, arise out of the breach of an express contract. Such a claim does not come under the class of claims exempted from a discharge in bankruptcy, as provided in the bankrupt act of Congress (Act July 1, 1898, c. 541, 30 Stat. 550, 562 [U. S. Comp. St. 1901, pp. 3428, 3447]) — section 17 of said act. This section provides what claims are released by the discharge and what are exempted. Section 63 enumerates the provable claims. Section 63 provides as follows: “Unliquidated claims against the bankrupt may, pursuant to application to the court be liquidated in suck manner as it may direct, and may thereafter be proved and allowed against Ms estate.” These sections were under consideration in the case of Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. 147, and the construction there put upon them is opposed to the contention of counsel for appellant in the present case. We think the case just cited, on principle, is conclusive of the question before us. See, also, Loveland on Bankruptcy, p. 829; In re Quilman, (D. C). 104 Fed. 981; 5 Cyc. 325, 326.

The court committed no error in overruling the demurrer and the motion to strike.

The copy of the discharge offered in evidence was certified as a true copy by the clerk of the bankrupt court granting the discharge, and attached to it was the seal of the court. This was sufficient to render it competent and admissible in evidence.—Pacific Guano Co. v. Mullen, 63 Ala. 363; Clements v. Pearce, 63 Ala. 284; Cochran v. State, 46 Ala. 714; Code 1907, §§ 3983, 3986.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed. '

Simpson, McClellan, and Mayfield, JJ., concur.