Frauds, Statute of. Bankruptcy. Contract, Performance and breach. Under R.L.c. 74, § 3, a plaintiff can recover on a new promise to pay a debt barred by a discharge in bankruptcy only by showing a definite and unequivocal promise in writing to pay such debt signed by or in behalf of the defendant. Expressions of a willingness to pay and of an expectation of financial ability to make payments on the debt are not sufficient.
The expressions in a letter written and signed by a bankrupt "I shall be able to make you a voluntary payment of at least $5 per month and I hope after six months time to be able to increase the amount. . . . I have so arranged matters with my assignee that there will be nothing to prevent my regular payment of $5 per month on old account," contain no absolute promise to pay a debt barred by the writer's discharge in bankruptcy sufficient to satisfy the requirement of R.L.c. 74, § 3.
A letter written and signed by a bankrupt in which he writes "I am sorry to say to you that the payments on your former account I shall not be able to make immediately as I wished to do," and says at the close "You are not to regard yourself as in any danger of losing the amount, as long as I hold my present position, because I have promised in time to take care of it, but I must have time to do it, as it will be done as fast as resources will allow" contains a distinct and unqualified promise to pay by instalments a debt barred by the writer's discharge in bankruptcy sufficient to satisfy the requirement of R.L.c. 74, § 3.
The plaintiff in an action of contract upon a new promise of the defendant to pay by instalments a debt barred by the defendant's discharge in bankruptcy, if he proves such a promise in writing signed by the defendant sufficient to satisfy the requirement of R.L.c. 74, § 3, can recover only the instalments of the debt which in accordance with the new promise of the defendant were payable at the date of the writ.
BRALEY, J.
Before the enactment of the original St. of 1856, c. 18, which by re-enactment is now embodied in R.L.c. 74, § 3, the oral evidence that the defendant unreservedly agreed to pay the indebtedness as a means of obtaining further credit despite the proceedings in bankruptcy, would have been sufficient to establish the plaintiff's claim. Pratt v. Russell, 7 Cush. 462. United Society v. Winkley, 7 Gray, 460. The object of the statute is, that by substituting a written for an oral promise, debtors might be relieved from being harassed by vexatious litigation, based on an effort to establish a continuing liability solely by conversations between the interested parties where on one side an attempt was made to hold the debtor notwithstanding his discharge as on a new promise by which he waived its benefit, and on the other to show that beyond a recognition by him of a moral obligation, and a willingness to pay his debt in full, nothing further was understood or undertaken. But before as well as since the statute, to revive a liability which otherwise had been legally discharged, the promise must be definite and unequivocal, and however strongly expressed neither an intention to pay old debts, nor a part payment on account are of themselves sufficient. A promise may be given after the bankruptcy proceedings are instituted, and is enforceable although subsequently a discharge is obtained. Lerow v. Wilmarth, 7 Allen, 463. Merriam v. Bayley, 1 Cush. 77. United Society v. Winkley, ubi supra. Jacobs v. Carpenter, 161 Mass. 16, 20, and cases cited. Heim v. Chapman, 171 Mass. 347. But having obtained a discharge the defendant was relieved from any further liability on a debt which was provable, unless his letters contained a definite agreement to pay the amount. The first two letters and the fourth while expressing a willingness and an expectation of financial ability to make payments contain no expression of an absolute undertaking, although the second contains a statement that if certain arrangements result as anticipated there "will be nothing to prevent my regular payment . . . on old account." If by implication this phrase refers to an oral promise it is not of itself a promise in writing. But the third letter after again referring to his pecuniary efforts, and ability to make payments, distinctly says at the close, "you are not to regard yourself as in any danger of losing the amount, as long as I hold my present position, because I have promised in time to take care of it, but I must have time to do it, as it will be done as fast as resources will allow." As the statute does not extend beyond the requirement of evidence of a continuing promise in some writing signed by the debtor or by his authority, no precise form of statement is necessary, and the intention and obligation of the debtor must be gathered from the phraseology he chooses to use. By the language employed the defendant stated positively that he had undertaken and then undertook to liquidate the debt, and as this acknowledgment constitutes a distinct and unqualified promise his first, second and third requests for rulings were refused rightly. Cook v. Shearman, 103 Mass. 21. Bigelow v. Norris, 139 Mass. 12, 13. Custy v. Donlan, 159 Mass. 245, 246. Champion v. Buckingham, 165 Mass. 76, 79.
In promising to pay the remainder by monthly payments the measure of the defendant's liability was not diminished although as the court correctly ruled in accordance with his fourth request only the instalments which were in arrears at the date of the writ could be recovered. Gillingham v. Brown, 178 Mass. 417, 422.
The exceptions must be overruled, and in accordance with the agreement of the parties judgment is to be entered for the plaintiff on the finding.
So ordered.