Bigelow v. Norris

29 N.E. 61, 139 Mass. 12, 1885 Mass. LEXIS 4

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1885
• Status: Published

Opinion

Holmes, J.

The strength of the plaintiff’s case is in the words, “I will also pay something on account.” There is force in the suggestion that the words “ on account ” recognize the debt as subsisting, and therefore imply a promise to pay it. But it is to be remembered that the defendant has as much right to his defence as the plaintiff once had to her recovery. The law cannot be supposed to look with disfavor upon a bar of its own creation. Hence the defendant is not to be deprived of his right, unless he uses words that plainly mean to renounce it, or at least express a clear undertaking for the future, which is inconsistent with further reliance upon the discharge. This is the meaning of the often repeated statement, that a new promise, to avoid the effect of a discharge in bankruptcy, must be distinct and unequivocal, (Merriam v. Bayley, 1 Cush. 77, and Elwell v. Cumner, 136 Mass. 102, 104,) a statement which is equally correct in principle, whether the obligation when revived stands on the new promise as such, or on a waiver of the bar which the statute has given the defendant to use or renounce at his will, which is the view adopted by our decisions, although they sometimes seem to imply that such a waiver can only be accomplished by a promise. Cook v. Shearman, 103 Mass. 21. Way v. Sperry, 6 Cush. 238. Ilsley v. Jewett, 3 Met. 439, Maxim v. Morse, 8 Mass. 127. See Cambridge Institution for Savings v. Littlefield, 6 Cush. 210, 213; Kelley v. Pike, 5 Cush. 484, 486.

It follows from what has been said, that an admission that the debt was incurred and has not been satisfied, or, in the language of Chief Justice Shaw, “ an acknowledgment of the existence of the debt,” is not enough to prevent a defendant from relying on his discharge. Pratt v. Russell, 7 Cush. 462, 464. Neither is a part payment on account. Cambridge Institution for Savings v. Littlefield, and Merriam v. Bayley, ubi supra. It stands on a different footing from part payment of a debt barred by the statute of limitations, which has been allowed a greater effect. Pub. Sts. c. 197, § 16. Ilsley v. Jewett, 2 Met. 168. We see no reason why a promise to pay a sum on account should do what an actual payment of it would not do. The words “ on account” simply admit the existence of the original debt unsatisfied, and apply the payment to it. They do not in terms waive any defence, and the implication of a new promise is excluded by the promise which is expressed. The latter promise is not to pay the debt, but to pay “ something,” that is to say, a sum the amount of which the defendant reserves the right to determine himself. It cannot therefore do more than revive a nominal portion of the debt.

The • words “ I mean right ” neither amount to a sufficient promise of themselves, nor enlarge the effect of the following words, which have just been discussed. Elwell v. Cumner, ubi supra. United Society v. Winkley, 7 Gray, 460. Allen v. Ferguson, 18 Wall. 1.

The second letter is not so strong as the first, and is disposed of by the same considerations and authorities.

Exceptions sustained.