Cook v. Shearman

103 Mass. 21

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1869
• Status: Published

Opinion

Gray, J.

1. An action upon a debt barred by a certificate of discharge in bankruptcy or insolvency, and revived by a new promise, counts upon the original debt. The new promise need not be alleged in the declaration; and, at common law, might have been replied or given in evidence in support of the promise declared on. Way v. Sperry, 6 Cush. 241. Under the practice act, no replication is required, unless by special order of the court. Gen. Sts. c. 129, § 23. The plaintiff was therefore rightly permitted to prove a new promise, without having alleged it either in his declaration or by way of replication.

2. The certificate of discharge in insolvency takes effect, not from its date, but from the commencement of the proceedings in insolvency. Gen. Sts. c. 118, §§ 75, 76. A distinct and unequivocal promise to pay the debt, made by the debtor after the commencement of such proceedings, whether before or after obtaining his certificate of discharge, is equally binding. Lerow v. Wilmarth, 7 Allen, 463. All the letters offered in evidence were therefore rightly admitted.

3. The statements in those letters, that the defendant expects to pay the plaintiff all that is due to him, and hopes to be so situated as to send him the full amount of his bill, with interest, coupled with the assertions in the first and last of them that he will see to it that the plaintiff does not lose by him, amounted to a distinct and unequivocal promise, the legal construction and effect of which could not be controlled by his own testimony as to the meaning of the expressions contained in the letters. The plaintiff’s testimony was rightly admitted for the purpose of showing that no other debt was due him from the defendant when the letters were written, and of identifying the e.iaim in suit. The defendant offered no evidence on this point, and did not ask to have the question whether the letters referred to this claim submitted to the jury. There being no contradic tian as to the facts, the question whether a new promise was proved was for the court, and was rightly decided in the plaintiff’s favor. Barnard v. Bartholomew, 22 Pick. 291. Woodbridge v. Allen, 12 Met. 470.

4. The note on which the action was brought was duly stamped, as required by the internal revenue act of the United States, The letters did not modify that contract, and were not intended to contain within themselves the terms of an agreement between the parties, but were merely evidence to support the action on the contract as originally made, and therefore required no stamp. Beeching v. Westbrook, 8 M. & W. 411. Marshall v. Powell, 9 Q. B. 779. Exceptions overruled.