Ecker v. Bohn

Grason, J.,

delivered the opinion of the Court.

This is an appeal from the Circuit Court for Frederick County, and the record shows the same looseness and *287 irregularity in the pleadings, which we have taken occasion to condemn in the opinion of this Court, filed at the present term in the case of Norwood vs. The State, ante p. 68. Trusting that what we there said of such practice will have the effect of remedying it, we shall proceed to consider such of the questions, presented upon the record, as we deem material to the decision of this case.

Upon the demurrer it was contended that the declaration was insufficient to justify a recovery, first, because it did not allege that the promise of the defendant to pay the debt of Jacob S. Bohn, was in writing, second, because the promise, as stated in the declaration, is in violation of the United States Bankrupt Law and against public policy, and third, because the declaration does not aver that Jacob S. Bohn had committed an act of bankruptcy, by reason of which omission it did not appear that the appellee had any right to file a petition in bankruptcy against him, the forbearance to file which is alleged as the consideration for the appellant’s promise to pajr Jacob S. Bohn’s debt to the appellee.

1st. A mere promise to pay the debt of a third person, without any new or superadded consideration moving to the promisor from the plaintiff, is within the Statute of Frauds, and, to be binding, must he in writing, and must state the consideration. Hutton vs. Padgett, 26 Md., 281 . But it is not necessary to allege in the declaration that the promise is in writing. If it appear in proof at the trial to he in writing, it is sufficient!

2nd. The Bankrupt Act forbids any creditor or any other person as trustee for such creditor, to take from the bankrupt any contract, covenant or security, for the payment of any money as a consideration to induce the creditor to forbear opposing the application for the discharge of the bankrupt, and imposes penalties and forfeitures upon any creditor, who shall take such contract, covenant or security. But there is no provision in that Act which for *288 bids the creditor to take from a third party such contract, covenant or security, as an inducement to forbear instituting proceedings against his debtor, for the purpose of having.him declared a bankrupt. Before any proceedings in banhruptcy have been commenced, we have no doubt that any creditor may take such contract, covenant or security, from a third party as an inducement to. forbear instituting proceedings in bankruptcy against his debtor, without violating any provision of the Bankrupt Act or contravening public policy.

3rd. The declaration alleges that Jacob S. Bohn was indebted to certain parties, that he was insolvent and unable to pay his debts, and had conveyed and transferred his real estate to the appellant, who had accepted the same without paying any consideration therefor. These facts, if true, constituted an act of bankruptcy on the part of Jacob S. Bohn and the statement of them in the declaration is equivalent to a direct allegation, that he had committed an act of bankruptcy. The demurrer was therefore properly overruled.

But while the declaration states a good cause of action, the record presents a state of facts which are conclusive against the appellee’s right to recover in this action. The proof is clear and uncontradicted that, at the time the appellant made the promise stated in the declaration, the only deDt, due by Jacob S. Bohn to the appellee, which was provable under the Bankrupt Act, was one hundred dollars. It is true that the appellee was at that time surety for Jacob S. Bohn on two other notes, one to Metcalf and the other to Pfoutz, but he expressly swears that he had paid neither of them at the time of the appellant’s promise to pay their amounts to him, and that Metcalf’s note was unpaid at the time of the trial of this case. The debts to Metcalf and Pfoutz, not having been paid by the appellee at the time of the appellant’s promise, they were not provable by the appellee in bankruptcy under section *289 5070 of the Revised Statutes of the United States, which provides that any person liable as hail, surety, guarantor or otherwise for the bankrupt, who shall have paid the debt, or any part thereof, in discharge of the whole, shall he entitled to prove such debt, or to stand in the place of the creditor, if the creditor had proved the same, although such payment shall have been made after the proceedings in bankruptcy were commenced. It is clear, therefore, that the appellee held hut one claim against Jacobs. Bohn, which was provable under the Bankrupt Act, at the. time of the appellant’s promise, and that was the note for one hundred dollars. It therefore follows that the appellee had no right, under the Bankrupt Act of 1867, chap. 176, to file a petition in bankruptcy against Jacob S. Bohn, for the 39th section of that Act provides “that a party may be adjudged a bankrupt, on the petition of one or more of his creditors, the aggregate of whose indebtedness, provable under this Act, amounts to at least two hundred and fifty dollars, provided such petition he brought within six months after the act of bankruptcy shall have been committed.” It is plain therefore that the appellee had no right to proceed in bankruptcy against Jacob S. Bohn at the time the promise ■of the appellant, mentioned in the declaration, was made. To constitute forbearance to sue, a good consideration for a promise, there must exist, at- the time of the promise, a good cause of action. If there he no good cause of action existing at that time, the promise is without consideration, and cannot he enforced, although it he in writing. 1 Parsons on Contracts, 365, and the authorities there cited in note c; Wade vs. Simeon, 52 Eng. Com. Law Repts., 564, 565, marg.; Jones vs. Ashburnham, 4 East, 463 ; Hartle vs. Stahl and Wife, 27 Md., 171 .

The appellant’s third prayer ought therefore to have been granted.

Both of the appellee’s prayers were fatally defective, because they required the jury to find for the plaintiff upon *290 their finding only part of the facts necessary to he found in order to entitle the plaintiff to a verdict, and -upon a promise, which, as stated in the prayers, was clearly within the operation-of the Statute of Frauds. For these reasons as well as for those before stated, these two prayers ought to have been refused.

(Decided 22nd June, 1876.)

As the view we have taken of this case is conclusive against the appellee’s right to recover, it becomes unnecessary for us to pass upon the questions raised by the exceptions taken during the progress of the trial, or by the appellant’s rejected prayers.

Judgment reversed,.