A debtor, by original obligation, in one of the Southern states,
writing to his creditor after he, the debtor, had applied for the
benefit of the Bankrupt Act and while the proceedings were pending,
a discharge in which was finally granted to the debtor, gave in the
letter a statement of his affairs and of the causes which led to
his applying for the benefit of the Bankrupt Act. He continued:
"Be satisfied; all will be right. I intend to pay all my just
debts if money can be made out of hired labor. Security debt I
cannot pay."
Adding in a postscript:
"All will be right betwixt me and my just creditors."
Held that the debt having been discharged by the
discharge of the debtor under the Bankrupt Act, was not revived by
what was written as above; that the promise to pay it was not
clear, distinct, and unequivocal, short of which sort of promise
none would revive a debt once discharged.
P. H. Allen & Co. sued A. H. Ferguson upon a promissory note
dated March 20, 1867, payable one day after date, with
interest.
Ferguson appeared and pleaded his discharge in bankruptcy in bar
to the action.
The plaintiffs replied a new promise in writing made while the
proceedings in bankruptcy were pending. This promise the plaintiffs
averred that they relied upon, and in consequence of it made no
efforts to collect their debt. The
Page 85 U. S. 2
alleged promise was contained in the following letter, which the
plaintiffs made part of their replication,
viz.:
"CROCKETT'S BLUFF, ARKANSAS, January 7, 1868"
"MESSRS. T. H. ALLEN & CO."
"DEAR SIR: I avail myself of this opportunity to give you a fare
statement of my pecuniary affa'res. First, I failed to make a crop;
secondly, find myself involved as security to the amount of five or
eight thousand dollars; was sued, and judgments was render'd
against me at the last turm of our co'rt for about $4,000, a sum
suf'ic'ent to sell all the avai'ble property that I am in
possession of. I lost about $3,000 by persons taking the bankrupt
law. This is my situation. I was, as you can re'dily conclude, in a
bad fix. To remain as I was, at that time, my property would be
sold to pay security debts, and my just creditors would not get any
part of it, and that I would be redused to insolvency and still
ju'gments against me. As a last resort, concluded to render a
skedule myself in order to forse a
prorater division of my
affects. The five bales cotton I shipt you was all my crop, to pay
you for the meat that you had sent me, to enable me to make the
little crop that I did make. The cash that I requested you to send
me was, for myself and William Ferguson, to pay his hands for
labor; and one hundred and fifty yards of the bag'ing was for W.
Ferguson, and one barel of the salt. I have been absent from home
for the last two weeks; got home last night, and has not sean him
yet, but suppose he has shipt you some cotton. If he has not done
so, I will see that he sends you cotton at once.
Be satisf'ed;
all will be right I intend to pay all my just debts, if money can
be made out of hired labor. Security debt I cannot pay. I
shall have a hard time, I suppose, this se'son, but will do the
best I can."
"JAN. 8. -- Since the above was writ'en I have seen William
Ferguson. He says he ship'ed you two bales cotton, ten or twelve
days ago, and ship'ed in my name, as the baggin' was order'd by me
for him. William Ferguson will be in Memphis betwixt this and the
first of March, and will call and see you on bisness matters
betwixt me and you'self.
All will be right betwixt me and my
just creditors. Don't think hard of me. Attribet my poverty to
the unprincipel'd Yankey. Let me heare from you as usel."
"Yours, very respectfully,"
"A. H. FERGUSON"
Page 85 U. S. 3
To this replication the defendant demurred. The demurrer was
sustained by the circuit court, and this appeal was taken by the
plaintiffs.
MR. JUSTICE HUNT delivered the opinion of the Court.
The question is does the letter of the defendant, set forth in
the replication, contain a sufficient promise to pay the debt in
suit?
All the authorities agree in this, that the promise by which a
discharged debt is revived must be clear, distinct, and
unequivocal. It may be an absolute or a conditional promise, but in
either case it must be unequivocal, and the occurrence of the
condition must be averred if the promise be conditional. The rule
is different in regard to the defense of the statute of limitations
against a debt barred by the lapse of time. In that case, acts or
declarations recognizing the present existence of the debt have
often been held to take a case out of the statute. Not so in the
class of cases we are considering. Nothing is sufficient to revive
a discharged debt unless the jury are authorized by it to say that
there is the expression by the debtor of a clear intention to bind
himself to the payment of the debt. Thus, partial payments do not
operate as a new promise to pay the residue of the debt. The
payment of interest will not revive the liability to pay the
principal, nor is the expression of an intention to pay the debt
sufficient. The question must be left to the jury with instructions
that a promise must be found by them before the debtor is bound.
*
The plaintiffs in error contend that such promise is to be found
in the letter of the defendant, forming a part of their
replication. They rely chiefly on these expressions: "Be satisfied;
all will be right. I intend to pay all my just debts, if money can
be made from hired labor. Security
Page 85 U. S. 4
debt I cannot pay," and on the postscript where he adds, "All
will be right betwixt me and my just creditors."
There can be no more uncertain rule of action than that which is
furnished by an intention to do right. How or by whom is the right
to be ascertained? What is right in a particular case? Archbishop
Whately says:
"That which is conformable to the supreme will is absolutely
right, and is called right simply, without reference to a special
end. The opposite to right is wrong."
This announces a standard of right, but it gives no practical
aid. What may be right between the defendant and his creditors is
as difficult to determine as if he had no such standard. It is not
absolutely certain that it is right for a creditor, seizing his
debtor, to say, Pay me what thou owest, or that it is wrong for the
debtor to resist such an attack. It is not unnatural that the
creditor should think that payment of the debt was right, and that
it was the only right in the case. It is equally natural that the
debtor should entertain a different opinion. The law holds it to be
right that a debtor shall devote his entire property to the payment
of his debts, and when he has done this, that after-acquired
property shall be his own, to be held free from the obligation of
all his debts, just debts as well as unjust, principal debts as
well as security debts. Neither the supreme will, so far as we can
ascertain it, nor the laws of the land require that a debtor whose
family is in need, or who is himself exhausted by a protracted
struggle with poverty and misfortune, should prefer a creditor to
his family; that he should appropriate his earnings to the payment
of a debt from which the judgment of the law has released him,
rather than to the support of his family or to his own comfort.
What an honest man should or would do under such circumstances it
is not always easy to say. When, therefore, the debtor in this case
said to the plaintiff: "Be satisfied; I intend to do right; all
will be right betwixt my just creditors and myself," he cannot be
understood as saying that he would certainly pay his debt, much
less that he would pay it immediately, as the plaintiff assumes.
What is or what may be right depends upon
Page 85 U. S. 5
many circumstances. The principle is impracticable as a rule of
action to be administered by the courts. There is no standard known
to us by which we are able to say that it is wrong in the defendant
not to pay the plaintiff's debt.
We are of the opinion that the letter produced does not contain
evidence of a promise to pay the debt in suit, and that the
judgment appealed from must be
Affirmed.
* Hilliard on Bankruptcy, 264 to 266, where the cases are
collected.
