Caledonian Coal Co. v. Young

New Mexico Supreme Court

Caledonian Coal Co. v. Young

167 P. 274, 22 N.M. 675

CourtNew Mexico Supreme Court

DecidedMay 24, 1917

DocketNo. 1968

StatusPublished

This text of 167 P. 274 (Caledonian Coal Co. v. Young) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Caledonian Coal Co. v. Young, 167 P. 274, 22 N.M. 675 (N.M. 1917).

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Opinion

OPINION OF THE COURT.

EOBEETS, J.

This action was instituted by appellant against appellee in the court below to recover on a promissory note for $650, alleged to have been executed January 15, 1910, and payable nine months after date, to the order of appellant, with interest. The complaint, further alleged that on the 30th day of July, 1913, appellee was adjudged a bankrupt, and that thereafter he received h'is discharge. It Ayas further alleged that after adjudication and discharge of the appellee he promised appellant that he Avould pay all that was clue upon said note, with which promise he failed to comply. The answer set up the adjudication in bankruptcy and denied the promise to pay. The case was tried by the court without a jury, and findings of fact were made and conclusions of law stated. The court found, at the request of the appellant:

“That on March 27, 1914, J. H. Young orally promised James Sneddon, agent for the Caledonian Coal Company, that he would pay the Caledonian Coal Company account and all his other' creditors if he was able.”

The’following conclusion of law was made by the court:

“That the conversation does not amount to a promise, either conditional or otherwise, and is not binding upon the defendant in this case.”

Judgment was entered for the appellee.

[X, 2] The authorities uniformly agree that the promise by which a discharged debt is revived must be clear, distinct, and unequivocal. That the promise may be either absolute or conditional, but in either case it must be unequivocal, and the occurrence of the condition must be averred if the promise be conditional. Allen v. Ferguson, 18 Wall. 1, 21 L. Ed. 854. Other cases will be found in a note to Cole v. Rosene, 66 Wash, 73, 38 L. R. A. (N. S.) 577; Sundling v. Willey 19 S. D. 293, 9 Ann. Cas. 644; Remington on Bankrupt (2d Ed.) § 2720. We agree with the conclusion of law made by the lower court that the language employed did not amount to a certain clear and unequivocal promise to pay the debt.

Therefore the judgment will be affirmed; and it is so ordered.

Hanna, C. J., and Parker, J., concur.

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OPINION OF THE COURT.

EOBEETS, J.

This action was instituted by appellant against appellee in the court below to recover on a promissory note for $650, alleged to have been executed January 15, 1910, and payable nine months after date, to the order of appellant, with interest. The complaint, further alleged that on the 30th day of July, 1913, appellee was adjudged a bankrupt, and that thereafter he received h'is discharge. It Ayas further alleged that after adjudication and discharge of the appellee he promised appellant that he Avould pay all that was clue upon said note, with which promise he failed to comply. The answer set up the adjudication in bankruptcy and denied the promise to pay. The case was tried by the court without a jury, and findings of fact were made and conclusions of law stated. The court found, at the request of the appellant:

“That on March 27, 1914, J. H. Young orally promised James Sneddon, agent for the Caledonian Coal Company, that he would pay the Caledonian Coal Company account and all his other' creditors if he was able.”

The’following conclusion of law was made by the court:

“That the conversation does not amount to a promise, either conditional or otherwise, and is not binding upon the defendant in this case.”

Judgment was entered for the appellee.

[X, 2] The authorities uniformly agree that the promise by which a discharged debt is revived must be clear, distinct, and unequivocal. That the promise may be either absolute or conditional, but in either case it must be unequivocal, and the occurrence of the condition must be averred if the promise be conditional. Allen v. Ferguson, 18 Wall. 1, 21 L. Ed. 854. Other cases will be found in a note to Cole v. Rosene, 66 Wash, 73, 38 L. R. A. (N. S.) 577; Sundling v. Willey 19 S. D. 293, 9 Ann. Cas. 644; Remington on Bankrupt (2d Ed.) § 2720. We agree with the conclusion of law made by the lower court that the language employed did not amount to a certain clear and unequivocal promise to pay the debt.

Therefore the judgment will be affirmed; and it is so ordered.

Hanna, C. J., and Parker, J., concur.

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