Fletcher v. Neally

Assumpsit, for use and occupation of house, sixty dollars, of garden, ten dollars; cash, four dollars, and services, two dollars. Plea, discharge in bankruptcy, September, 1843; replication, a new promise since, &c.

Arthur Fletcher testified that the plaintiff left with him for collection and settlement the above claim: That, in the spring of 1848, he asked the defendant to pay it, and told him what the claim was for. He said he would call and settle it, but thought the plaintiff ought to deduct the ten dollars for use of the garden, as the house was so much out of repair. He said he was to give sixty dollars a year for the house, and seventy dollars for house and garden. In the winter of 1844, he saw the defendant again, and spoke to kirn about it, not knowing tbat be bad been in bankruptcy, and tbe defendant said be bad not tbe money tben, but would pay it, but should claim a deduction of tbe ten dollars for the use of tbe land: tbat tbis last conversation was but a few weeks before tbe writ was made.

Tbis is assumpsit for tbe rent of a bouse and garden from tbe 27tb day of January, 1840, to tbe 5th day of November, of the same year, with two small charges, one of which is for cash, and tbe other for services.

Tbe defendant was discharged in bankruptcy, in tbe month of September, 1843, and in tbe spring of tbat year bad a conversation with Mr. Fletcher, and also in tbe winter of 1844. In tbe first conversation Mr. Fletcher explained to him tbe claim be held, and tbe defendant said tbat be would settle it, but thought tbe plaintiff ought to deduct tbe ten dollars for tbe use of tbe garden. He said tbat be was to give sixty dollars a year for tbe bouse, and seventy dollars for tbe bouse and garden.

In tbe winter of 1844, at another conversation, tbe defendant said tbat be would pay tbe claim, but should insist on a deduction of ten dollars for tbe use of tbe land.

Tbis conversation, taken in connection with tbat which was held before tbe bankruptcy, amounts to a promise of tbe defendant to pay at tbe rate of sixty dollars a year for the use of tbe bouse. Tbe question raised is, whether be is bound by it to pay tbe debt, tbe same having been discharged by proceedings under tbe bankrupt law. Tbe bankrupt law was designed to effect two objects: the equal distribution of the property of a debtor among his creditors, and the relief of the debtor from the pressure of obligations which hindered him from exerting himself to advantage.

The first of these objects has no other importance to the debtor than to satisfy the desire he should feel that his creditors should share equally in the fund from which his debts are to be paid. But in the second, which is more particularly intended for his benefit, he has a direct personal interest, and, if it be attained, he will be the only person to derive advantage from it.

Now the general principle, recognized by repeated decisions and by common sense, is, that a provision, made by law for the benefit of particular individuals, may be waived by them. IJpon the statement of that principle, the only difficulty is to find a good reason against it.

It applies to the case before us. It was clearly competent for the defendant to waive all the benefit which the bankrupt law was designed to afford him. His discharge did not pay the debt he owed the plaintiff. It was merely a matter of which he was at libei’ty, if he chose, to avail himself, to defeat a suit brought for its recovery.

But after the discharge which placed this power at his disposal, he agreed, for a good consideration, to pay the debt; for the indebtedness still existing, notwithstanding the bar, is a good consideration for the promise. This promise is a waiver of the benefit of his certificate, which he cannot recall. It renews the defendant’s legal liability to pay, which was, by his discharge in bankruptcy, so far suspended that he might, by pleading, have defeated a suit brought for the recovery of the debt.

The law is so held with regard to debts barred by the statute of limitations, and has been so held in respect to debts barred by bankruptcy in England, and is perfectly consonant with reason and the moral sense of mankind. Trueman v. Fenton, Cowp. 544. Tbe opinion of tbe court is, tbat tbe plaintiff is entitled to recover for tbe use of tbe bouse, but, for tbe other things which were not included in tbe promise, tbe action cannot, upon tbe evidence, be maintained.