Stewart v. Reckless

Potts, J.

To maintain an action upon a promise to pay a debt barred by the statute of limitations, it must be shown that the promise was express, unqualified, unconditional, and in consideration of a debt which was actually due in whole or in part. And if the promise be coupled with a condition, or a contingency, that the condition has been performed, or the contingency has happened. Bell v. Morrison, 1 Peters, 362 ; Wetzell v. Bussard, 11 Wheaton, 309 ; Sands v. Gelson, 15 Johns. R. 511; Bang v. Hall, 2 Pick. 368 .

It has been held that the promise is not to be regarded as the revival of the old debt, but as a new contract, springing out of, and supported by the original consideration. Upon this question, however, it must be conceded that the authorities to be found in the books, as well as the practice adopted or sanctioned by the courts, are very much in conflict. But recurring to the language of the 4th section of the bankrupt act of 1841, which governs this case, it seems to me there is but little room for any difference of opinion. That section enacts, that “such discharge and certificate, when granted, shall, in all courts of justice, be deemed a full and *430 . complete discharge of all debts, contracts and other engagements of such bankrupt, which are provable under this act, and shall be pleaded as a full and complete bar to all suits,” <&c.

■ A debt discharged is a debt extinguished. If the old debt was extinguished — the obligation to pay gone — nothing remained of legal liabilities. But as the debt had been discharged, not by payment, not by the act of the creditor, but by the operation of the law, there remained a moral obligation, which has been held to be a sufficient consideration to support a new promise, agreement, or contract to pay. But, then, it is a clear, logical deduction from the premises, that the new contract is the foundation of the action, and not the former indebtedness.

The plaintiff, here, alleges a new promise; the defendant denies it. This is the issue, and the burthen is on the plaintiff to prove it. Has he done so ?

The evidence upon which the counsel for the plaintiff relies, is the admission of Reckless made to Britton, that “ he had always told Stewart he intended to pay him.” As to the rest, it only amounts to an acknowledgment by the defendant of his former indebtedness on the two notes, and his intention to pay the large note when he sold certain lots, or when he should be able, or it was convenient; not made to or in the presence of the plaintiff or his agent, but to third parties. Then, is this a promise, an agreement, or contract to pay the plaintiff the amount of the old note ?

The expression of an intention to do a thing, is not a promise to do it. An intention is but the purpose a man forms in his own mind; a promise is an express undertaking, or agreement to carry the purpose into effect. The intention may begin and end with the person who forms it. A promise, supported by a good consideration, can only be rescinded by the act of both the parties to it — for to make a binding promise, there must be a promisee as well as a promisor.

There is no evidence in this case, of any express promise made by the defendant to the plaintiff, or to any body *431 acting as his agent in the premises; and nothing, therefore, upon which to found a legal liability to pay this debt; and I therefore am of opinion that the verdict should be set aside and judgment entered for the defendant.

Green, Oh. J., and Elmer, J., concurred.