Wllson v. Morris

4 Ky. Op. 55, 1871 Ky. LEXIS 136

• Court: Court of Appeals of Kentucky
• Decided: October 20, 1871
• Status: Published

Opinion

Opinion op the Court by

Judge Pryor:

The appellee George V. Morris on tbe 9th of April, 1870, instituted an action by ordinary petition against the appellant Wilson and his wife, upon an account for merchandise, alleged to have been sold and delivered to tbe wife by tbe appellee, amounting to $172.79. Tbe petition alleges tbat tbe articles were necessaries for tbe family, and such, as made the wife’s estate liable for tbe debt. The, wife answered denying any liability upon her part for its payment, and the husband by bis answer, relied upon his discharge in bankruptcy as a bar to appellee’s recovery, etc.

Tbe appellee then filed an amended petition, alleges that the appellant after he had ■ obtained bis discharge in bankruptcy “faithfully and expressly promised” the appellee to pay him the account set forth in the original petition. The appellant Wilson in his answer controverted all the allegations of the amended petition in reference to the alleged promise to pay. The only question presented is as to the sufficiency of the evidence to maintain the cause of an action presented by this amended pleading. The appellee proved by one witness that appellant stated to him “that his object in talcing the bankrupt law, was to avoid paying security debts, and that he intended to pay the witness what he owed him, and that he intended to pay the appellee George V. Morris, and that he would pay all he owed as soon as he could.” 'Another witness, the clerk of appellee heard appellant say “that his object was to avoid paying security debts, and that he intended lo pay Dr. Lightfoot, George V. Morris, the appellee and some others whose names he does not recollect.” A discharge in bankruptcy releases the debtor from legal liability upon all of his previous debts, but as has been often decided, the moral obligation to pay these debts, is a sufficient consideration to make the debtor legally responsible upon a promise to pay the original debt. The promise however when made does not revive the original debt and the action can be' maintained alone upon the promise to pay, Graham v. Hunt, B. Monroe, 7. The amended petition alleges an express, unconditional promise to appellee by the appellant to pay this debt. The burden of proof was upon the appellee to show that this promise had been made. The testimony offered on this point is the substance of casual conversations held by the appellant with third persons shortly after his discharge in bankruptcy, and were evidently had with a view of excusing himself for the step he had taken in order to relieve himself of his indebtedness, and not for the purpose of assuming by these statements any legal liability. He never held any conversation with- the appellee on the subject. No claim or debt had been presented to him by the witness who detailed these conversations for payment, or by any one else, and certainly no promise was made by appellant to them or either of them to pay this particular debt. His expression of an intention to pay in connection with the conversations proven do not amount to a promise to pay. An inference might be drawn from the conversations held with the witness .that the appellant designed paying all of his individual liabilities, but whatever his intentions might have been, on the nature of the moral obligation upon him to pay, he evidently did not intend by these conversations to change this moral obligation into a legal liability. No such promise is proven as alleged either to the appellee himself or to any one else for bim. Tbe judgment of tbe court below is reversed and tbe cause is remanded for further proceedings not inconsistent with tbis opinion.

Hodman, Cox, for appellant. Gord, for appellee.