Grace, J.
This appeal is one from a judgment entered upon a directed verdict.
The material and controlling facts are as follows:
During the years 1904 to 1913 or 1914, defendant was engaged in general merchandising, at Doyon, Eamsey county, North Dakota. He had been acquainted with the plaintiff for twenty-seven years.
In the month of June, 1913, the defendant applied to the plaintiff for a loan of $1,000. The plaintiff made the loan, and, as evidence thereof, the defendant executed and delivered to the plaintiff his promissory note for $1,000, dated July 3, 1913, due January 1, 1914, with interest before and after maturity, at the rate of 10 per cent per annum.
In April, 1914, the defendant was adjudged a bankrupt in an involuntary bankruptcy proceeding, in and by the district court of the United States for the district of North Dakota. During the coiirse of the trial, the following stipulation was made by the parties: “It is hereby stipulated by and between the parties to this action that, on or about the 3d day of April, 1914, the defendant, E. S. Chamberlin, was adjudged a bankrupt in an involuntary bankruptcy proceeding, in and by the district court of the United States for the district of North Dakota; and that the note sued upon in this case was filed, as a claim against the bankrupt estate of said F. S. Chamberlin, in said bankruptcy proceeding, and was allowed therein; and that such proceedings have been had in said bankruptcy, whereby the defendant, F. S. Chamberlin, has been in said court discharged from all of his debts listed in that proceeding, including the note in court; and that, at this time, the plaintiff relies upon a new promise to pay the defendant, which new promise is denied by the defendant.
It is agreed that, in such bankruptcy proceeding, there was paid to the plaintiff, by the trustees in bankruptcy, as dividends, the sum of [356]*356$50.40, on November 2, 1914, and the further sum of $58.50 on June 21, 1915, and that this amount was indorsed upon and allowed on this note, together with other indorsements, amounting' to $67.
The plaintiff brought this suit upon the note, the complaint being i n the ordinary and usual form in such case. Among other defenses, tho defendant alleged that on the 3d day of April, 1914, he was adjudged a bankrupt, and that on the 10th day of April, the note was duly proved and filed as a claim against his, estate, in that proceeding; and that he turned over all his assets, both real and personal, to the trustee in bankruptcy; and further alleges the receipt, by the plaintiff, of the dividends above mentioned. He also alleges that any claim of plaintiff, based upon the notes, has been extinguished.
The plaintiff claims that after defendant was adjudicated a bankrupt, he made new promises, orally, to pay the debt. The defendant’s contention is that he made no new promise of a definite and certain character.
The new promise, if airy; centers around a conversation had between plaintiff and defendant, in defendant’s office in Chary, North Dakota, in June, 1916.’
The substance of the conversation, as the evidence discloses it, may be summed up in a very few sentences. Chamberlin’s testimony shows that he told Holden that when he was able, he would pay the debt, or, if he could pay the debt, he would do so. Ho told Holden that he considered it a personal debt, and that, as soon as could, he would pay it.
The plaintiff, in the month of July, 1916, had the defendant arrested for obtaining money under false pretenses. At the present trial, the defendant was asked if he did not give certain testimony in the preliminary hearing, which was quoted to him ás follows:
“You told Mr. Holden, at that time, that you would pay him whether the bankruptcy paid out or not.” Answer: “I surely did, and Mrs. Chamberlin told him, also.”
The defendant did not know whether that question was asked him or not; he would not swear that he did not so testify. He said, “I would have to take this evidence.” The plaintiff claims this statement, when originally made, was a new promise to pay the debt.
'If the defendant ever made the statement- included in the question and answer just above set forth, we do not think there is any compe[357]*357tent evidence of it in this record. We do not find that that part of the record, in the criminal case where such evidence was given, is offered as evidence in this case; and, if it were, we do not see how it could be for any other purpose, excepting to affect the credibility of the defendant. That case, too, was between different parties; that is, the state of North Dakota against the defendant Chamberlin. The question and answer above is no evidence of a new promise, and no further attention need be given to plaintiff’s contention in this regard, as it is wholly without any merit.
The plaintiff claims that, during the conversation at Crary, the defendant said: “I will pay you. I calculate to pay you, and I will pay it. I could pay you two or three hundred dollars this fall, and that much a year from now, and in three years’ time I may clean it all up.”
It appears, however, that Mr. Holden, at the time of that conversation, made an offer to the defendant' to give him three or five years to pay .the balance, if he would give a note, with an indorser.
The plaintiff, in answer to the court, said: “Well, he made this offer, and I made him a proposition to give him three or five years, with an indorser, but that he would not do.”
The propositions made by defendant to the plaintiff and by plaintiff to defendant were conditional, and all were unaccepted; those of the plaintiff were latest made. It was shortly after this conversation that plaintiff made out a complaint charging defendant with obtaining money under false pretenses.
The appellant has assigned seven errors, and in addition thereto, the insufficiency of the evidence to sustain the verdict, pointing out what is claimed to be the insufficiency of the evidence.
The first four errors assigned relate to the overruling of plaintiff’s objections to certain evidence offered by the defendant; it is held that the court was not in error in overruling the objections.
The fifth and sixth errors assigned relate to evidence which had reference to the swearing out of the warrant by the plaintiff against the defendant, for obtaining money under false pretenses.
The defendant stated the only purpose of introducing such testimony was to show that he and the plaintiff parted without an agreement, at their conversation in Crary, 1916. The court held that, for [358]*358that purpose, it would admit the testimony. In this regard, we do not think the court committed any error. If the testimony had been admitted for any other purpose, a different question might arise. But the only real question in this case being whether defendant made a new promise, the swearing out of the warrant shortly after the meeting in 1916, at Crary, and the conversation had there between the parties, was some evidence that there was no new promise to pay the debt.
The court was not in error in directing a verdict for defendant. The evidence clearly shows there was no new promise to revive the debt. The propositions made by each to the other, the plaintiff making the latest, were conditional, and all remained unaccepted and refused.
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Grace, J.
This appeal is one from a judgment entered upon a directed verdict.
The material and controlling facts are as follows:
During the years 1904 to 1913 or 1914, defendant was engaged in general merchandising, at Doyon, Eamsey county, North Dakota. He had been acquainted with the plaintiff for twenty-seven years.
In the month of June, 1913, the defendant applied to the plaintiff for a loan of $1,000. The plaintiff made the loan, and, as evidence thereof, the defendant executed and delivered to the plaintiff his promissory note for $1,000, dated July 3, 1913, due January 1, 1914, with interest before and after maturity, at the rate of 10 per cent per annum.
In April, 1914, the defendant was adjudged a bankrupt in an involuntary bankruptcy proceeding, in and by the district court of the United States for the district of North Dakota. During the coiirse of the trial, the following stipulation was made by the parties: “It is hereby stipulated by and between the parties to this action that, on or about the 3d day of April, 1914, the defendant, E. S. Chamberlin, was adjudged a bankrupt in an involuntary bankruptcy proceeding, in and by the district court of the United States for the district of North Dakota; and that the note sued upon in this case was filed, as a claim against the bankrupt estate of said F. S. Chamberlin, in said bankruptcy proceeding, and was allowed therein; and that such proceedings have been had in said bankruptcy, whereby the defendant, F. S. Chamberlin, has been in said court discharged from all of his debts listed in that proceeding, including the note in court; and that, at this time, the plaintiff relies upon a new promise to pay the defendant, which new promise is denied by the defendant.
It is agreed that, in such bankruptcy proceeding, there was paid to the plaintiff, by the trustees in bankruptcy, as dividends, the sum of [356]*356$50.40, on November 2, 1914, and the further sum of $58.50 on June 21, 1915, and that this amount was indorsed upon and allowed on this note, together with other indorsements, amounting' to $67.
The plaintiff brought this suit upon the note, the complaint being i n the ordinary and usual form in such case. Among other defenses, tho defendant alleged that on the 3d day of April, 1914, he was adjudged a bankrupt, and that on the 10th day of April, the note was duly proved and filed as a claim against his, estate, in that proceeding; and that he turned over all his assets, both real and personal, to the trustee in bankruptcy; and further alleges the receipt, by the plaintiff, of the dividends above mentioned. He also alleges that any claim of plaintiff, based upon the notes, has been extinguished.
The plaintiff claims that after defendant was adjudicated a bankrupt, he made new promises, orally, to pay the debt. The defendant’s contention is that he made no new promise of a definite and certain character.
The new promise, if airy; centers around a conversation had between plaintiff and defendant, in defendant’s office in Chary, North Dakota, in June, 1916.’
The substance of the conversation, as the evidence discloses it, may be summed up in a very few sentences. Chamberlin’s testimony shows that he told Holden that when he was able, he would pay the debt, or, if he could pay the debt, he would do so. Ho told Holden that he considered it a personal debt, and that, as soon as could, he would pay it.
The plaintiff, in the month of July, 1916, had the defendant arrested for obtaining money under false pretenses. At the present trial, the defendant was asked if he did not give certain testimony in the preliminary hearing, which was quoted to him ás follows:
“You told Mr. Holden, at that time, that you would pay him whether the bankruptcy paid out or not.” Answer: “I surely did, and Mrs. Chamberlin told him, also.”
The defendant did not know whether that question was asked him or not; he would not swear that he did not so testify. He said, “I would have to take this evidence.” The plaintiff claims this statement, when originally made, was a new promise to pay the debt.
'If the defendant ever made the statement- included in the question and answer just above set forth, we do not think there is any compe[357]*357tent evidence of it in this record. We do not find that that part of the record, in the criminal case where such evidence was given, is offered as evidence in this case; and, if it were, we do not see how it could be for any other purpose, excepting to affect the credibility of the defendant. That case, too, was between different parties; that is, the state of North Dakota against the defendant Chamberlin. The question and answer above is no evidence of a new promise, and no further attention need be given to plaintiff’s contention in this regard, as it is wholly without any merit.
The plaintiff claims that, during the conversation at Crary, the defendant said: “I will pay you. I calculate to pay you, and I will pay it. I could pay you two or three hundred dollars this fall, and that much a year from now, and in three years’ time I may clean it all up.”
It appears, however, that Mr. Holden, at the time of that conversation, made an offer to the defendant' to give him three or five years to pay .the balance, if he would give a note, with an indorser.
The plaintiff, in answer to the court, said: “Well, he made this offer, and I made him a proposition to give him three or five years, with an indorser, but that he would not do.”
The propositions made by defendant to the plaintiff and by plaintiff to defendant were conditional, and all were unaccepted; those of the plaintiff were latest made. It was shortly after this conversation that plaintiff made out a complaint charging defendant with obtaining money under false pretenses.
The appellant has assigned seven errors, and in addition thereto, the insufficiency of the evidence to sustain the verdict, pointing out what is claimed to be the insufficiency of the evidence.
The first four errors assigned relate to the overruling of plaintiff’s objections to certain evidence offered by the defendant; it is held that the court was not in error in overruling the objections.
The fifth and sixth errors assigned relate to evidence which had reference to the swearing out of the warrant by the plaintiff against the defendant, for obtaining money under false pretenses.
The defendant stated the only purpose of introducing such testimony was to show that he and the plaintiff parted without an agreement, at their conversation in Crary, 1916. The court held that, for [358]*358that purpose, it would admit the testimony. In this regard, we do not think the court committed any error. If the testimony had been admitted for any other purpose, a different question might arise. But the only real question in this case being whether defendant made a new promise, the swearing out of the warrant shortly after the meeting in 1916, at Crary, and the conversation had there between the parties, was some evidence that there was no new promise to pay the debt.
The court was not in error in directing a verdict for defendant. The evidence clearly shows there was no new promise to revive the debt. The propositions made by each to the other, the plaintiff making the latest, were conditional, and all remained unaccepted and refused.
The jury could not find a new promise was made, unless there was competent evidence to support such finding, and there is no such evidence in this record.
If the evidence had been submitted to the jury, and it had returned a verdict in favor of plaintiff, the court, upon application, or of its own motion, would necessarily have to set such verdict aside, it heing entirely unsupported by any competent or substantial evidence. The directed verdict is amply supported by the evidence.
It is true that a debt discharged in bankruptcy is not, in fact, paid. The debtor is relieved from the payment of it, but his moral obligation remains unsatisfied, and is a sufficient consideration to support a promise to revive and pay the debt.
The promise is sufficient, whether it be made orally or in writing, if it be definite, certain, and free from ambiguity; or if the promise or offer of payment by the debtor be conditional, the condition must be pleaded by the creditor, and he must show, by competent evidence, that the condition has been performed.
“Thus, a promise to pay as soon as the bankrupt is able, is a valid one, and not void for uncertainty; but to be available, the promise must be averred in proper form, and satisfactory proof adduced of the defendant’s ability to pay,—that is, of the fact that he has sufficient property or means to pay.” 3 R. C. L. § 147; International Harvester Co. v. Lyman, 90 Minn. 275, 96 N. W. 87. The plaintiff has wholly failed in this case to comply with these requirements.
To remove the bar of the discharge of the debt in bankruptcy, by a new promise, the evidence to prove it must be clear and convincing, [359]*359and must show that it was certain and unambiguous. Mere expressions of an expectation and desire, or a hope to pay a debt discharged in bankruptcy, is not a new promise. 7 C. J. 412.
The writer, speaking for himself, is of the opinion that a debt or obligation discharged in bankruptcy, while not paid, is wholly extinguished, so far as any future legal liability upon it is concerned; that the debt or obligation no longer exist; that there remains only, after such discharge, the moral obligation to pay the debt; that this moral obligation may, and is, a sufficient consideration for a new contract to pay the debt discharged; that in making such new contract, based upon such moral obligation, the minds of the parties must meet upon all the terms in the same manner and to the same effect as upon any other contract; that is, if a debt for a given amount is discharged in bankruptcy, and the debtor makes a definite promise, after the adjudication, to pay the amount of the debt discharged, stating in such promise certain amounts of the debt to be paid at different times, or promising to pay it all at a certain time, that before a new contract is actually made, which is binding upon both parties, such terms contained in the promise must be accepted by the, creditor, and this constitutes a new contract for the amount of the debt,—in other words, a new debt,—the moral obligation to pay the debt discharged being a sufficient consideration for the new contract. 7 C. J. 412, 413. And, in addition to this, if there are conditions attached to the offer, they must be pleaded and a compliance with them established by competent proof.
The judgment appealed from is affirmed. Respondent is entitled to his costs and disbursements on appeal.
Robinson and Bronson, JJ., concur.