Wolffe v. Eberlein. The evidence is clear that a part of the inducement to the purchase by defendants of the patent right in question was the ability and readiness of the plaintiff to furnish the defendants with a supply of the patented articles. The purchase was entirely useless without it. The plaintiff being himself the manufacturer, and having contracted to supply the articles manufactured by him for a special purpose, he must be held by implication to have stipulated that they were useful, and reasonably suitable for the purpose for which they were furnished. If they proved to be worthless, this would be considered a failure of consideration in the contract, resulting from a breach of the implied warranty. The purchaser in such cases has a right to rely upon the judgment and skill of the manufacturer. Pacific Guano Co. v. Mullen, 66 Ala. 582; Benj. Sales (3d ed. Bennett), §§ 657, 661; Snow v. Schomacker Manufacturing Co., 69 Ala. 111; Hight v. Bacon, 126 Mass. 10; s. c., 30 Am. Rep. 639. The rulings of the court are in strict conformity to the foregoing principles, and its judgment is affirmed. Judgment affirmed. WOLFFE V. EBERLEIN. Bankruptcy (74 Ala. 99.) -new promise-action. When a subsequent promise is made to pay a debt discharged in bankruptcy, the creditor may sue on the new promise, or he may sue on the original debt and reply the new promise to a plea of discharge. A CTION on a judgment. The opinion states the case. The plaintiff had judgment below. Rice & Wiley and D. Clopton, for appellant. Watts & Sons, contra. SOMERVILLE, J. The proposition is not denied, that where a debt has been discharged by a decree in a court of bankruptcy, it VOL. XLIX - 102 Wolffe v. Eberlein. may, in a certain sense, be revived, so as to renew its legal obligation, by an express and unequivocal promise to pay it, made by the debtor subsequent to the date of discharge. The authorities are in perfect harmony as to this principle, the only conflict of opinion being as to cases where the debtor makes a promise to pay prior to obtaining his certificate of discharge. Evans v. Carey, 29 Ala. 99; Bish. Cont., § 448; Allen v. Ferguson, 18 Ala. 1; Knap v. Hoyt, 57 Iowa, 591; s. c., 42 Am. Rep. 59; Nelson v. Stewart, 54 Ala. 115; s. c., 25 Am. Rep. 660. This case is clearly of the former class, the promise to pay being express, and subsequent to the discharge in bankruptcy. The present action was brought on a judgment, in defense of which the appellant, in the court below, set up by way of plea his discharge in bankruptcy. The plaintiff made replication of an express promise by defendant to pay the claim unconditionally. The main point of contention is on the form of the pleadings. It is insisted that the replication of a verbal promise is a departure from the original cause of action, which declared on a judgment, and that the action should have been based upon the new promise, and not upon the judgment, which was extinguished by the fact of defendant's discharge in bankruptcy. There are two views of this subject presented in the books, as to the effect of a new promise to pay in its relation to a plea of bankruptcy. The more logical and sounder view perhaps is, that the new promise, and not the old debt, is the meritorious cause, or real foundation of the action. The old debt has become extinguished by operation of law, and no longer exists. But the moral obligation to pay still exists, and this, coupled with the antecedent valuable consideration, is sufficient to support a new promise, if clear, distinct and unequivocal in its nature. The moral obligation, uniting to the new promise, makes what was designated by Lord MANSFIELD, in Truman v. Fenton, Cowp. 544, "a new undertaking and agreement." DePuy v. Swart, 3 Wend. 135; 20 Am. Dec. 673; Farley v. Kelly, 88 N. C. 227; s. c., 43 Am. Rep. 743. There is another class of cases, supported perhaps by the weight of authority, which refer the efficacy of such promises exclusively to the principle, that the defendant may renounce the benefit of a law designed for his protection, and that the effect of a new promise is to waive any discharge that may be obtained in bankruptcy, at' Wolffe v. Eberlein. Mr. least to an extent commensurate with the promise itself. Wharton, in his recent work on Contracts, after observing that the validity of promises of this class is no longer placed upon the consideration of moral obligation, asserts that "the liability is now based exclusively on the right of a party to waive the protection of a statute relieving him from indebtedness." 1 Whart. Cont., § 513. Mr. Addison suggests, that "the express promise operates to revive the liability and take away the exemption." 1 Add. Cont. ( Am. ed.), § 13. The same view is adopted by Mr. Parsons and Mr. Bishop in their works on Contracts, and in fact, with singular unanimity by most if not all of the text-writers. 1 Pars. Cont. 434-435*; Bish. Cont., §§ 446-448; Leake Cont. 317; 1 Story Cont., 466. The past decisions of this court seem to have proceeded upon this theory of the law, and the prevailing system of pleading, by which the plaintiff is accustomed to declare upon the original promise, and to introduce the new promise by way of replication to the plea of bankruptcy, is manifestly an outgrowth of it. Dearing v. Moffitt, 6 Ala. 776; Branch Bank v. Boykin, 9 id. 320; Evans v. Carey, 29 id. 99, 107. It is not required that we should decide which of these two theories is correct. The better view, in our judgment, is that suggested by Mr. Parsons, that the plaintiff may, at his election, bring suit either upon the new promise, and declare upon it, in the first instance, as the foundation of his action, thus himself assuming the onus of proving the discharge in bankruptcy, without which the new promise would be unavailing; or he may sue upon the old or original promise, and when the plea of bankruptcy is interposed as a defense, may set up the new promise in his replication to the plea, as in analogous cases involving the defense of infancy and the statute of limitation. 1 Pars. Cont. 434-5* (6th ed.), note v, and cases cited. In DePuy v. Swart, 3 Wend. 135; 20 Am. Dec. 673, 676, while it was held that the liability of the bankrupt was referable only to the new contract, it was said to be well settled that the plaintiff could declare on the original cause of action. "The inconsistency of making the new promise the basis of the action," it was observed by MARCY, J., "and at the same time allowing the plaintiff to declare upon the antecedent debt, which has been discharged, or the remedy upon it barred, has been often presented in the courts of England and of this country; and Wolffe v. Eberlein. although it has been sanctioned, it has been looked upon as a deviation from the general rule requiring a plaintiff to state in his declaration the agreement or whole cause of action whereon his suit is brought." In Shippey v. Henderson, 14 Johns. 178, it was held proper for the plaintiff to sue the bankrupt on the original demand, and to reply the new promise in avoidance of the discharge set up in the plea; and such replication was decided not to be a departure from the declaration. This rule was followed in many subsequent cases in New York, including Dusenbury v. Hoyt, 53 N. Y. 521; s. c., 13 Am. Rep. 543, decided as late as 1873, in which the court said: "We are of opinion that this rule of pleading, so well settled, and so long established, should be adhered to. The original debt may still be considered the cause of action for the purpose of the remedy." Fitzgerald v. Alexander, 19 Wend. 402; Wait v. Morris, 3 id. 394. In the case of Field's Estate, 2 Rawle, 351; 21 Am. Dec. 454, it was held that the new promise was substantially the meritorious cause of action; but it was said that it might be treated otherwise in the pleadings, by declaring on the old promise, although this was admitted by GIBSON, C. J., who rendered the opinion in the case to be an anomaly in pleading. There are a large number of cases supporting the same view. See Bish. Cont., § 448, and cases cited in note 3. We have been cited to no case which holds that this long established rule of pleading is to be abandoned, where the action is one of debt brought upon a judgment of a court of record. The case of Maxim v. Morse, 8 Mass. 127, was brought on a judgment, and the plaintiff's replication of a verbal promise by the bankrupt to pay the debt was held to be no departure from the original cause of action, being declared to be such more in appearance than reality. The case of Otis v. Gazlin, 31 Me. 566, was a similar suit, in which the plaintiff successfully declared upon the judgment, instead of the new promise, and although bankruptcy was pleaded, the form of pleading was held to be correct. A strong analogy is found in cases involving the plea of the statute of limitations. Bankruptcy, it is true, extinguishes the debt as a legal subsisting demand, while the operation of the statute is only to destroy the remedy. Yet it is settled in the one class of cases, as well as in the other, that the new promise is the true and real foundation of the cause of action, and strictly speaking, upon it alone can a recovery be had. Such is the settled doc Gordon v. Tweedy. trine of this court, and since the case of Bell v. Morrison, 1 Pet. 351, decided by Judge STORY more than fifty years ago, it may be regarded as the recognized doctrine in this country. Bradford v. Spyker, 32 Ala. 134; Angell Lim. (6th ed.), § 212. Notwithstanding this fact, the rules of pleading permit the plaintiff to declare upon the original debt, and when the statute of limitations is pleaded, to reply the new promise. Angell Lim., § 288. In Bradford v. Spyker, 32 Ala. 148, this feature of pleading was said to be an anomaly in the law; but the court approved it, as sanctioned by long practice rather than in principle, quoting the language of BEST, C. J., in Upton v. Else, 12 Moore, 303 (22 Eng. Com. Law, 451), where he said: "Probably, the new promise ought in strictness to be declared on specially; but the practice is inveterate the other way, and we cannot get over it." The practice adopted in the present action of declaring on the original debt, where the bankruptcy of the defendant is pleaded, has prevailed for a long time in this State. Though an anomaly in the law, we can see no good to result from abolishing it by judicial decision, but rather inconvenience and confusion. Admitting it to be wrong in principle, we feel justified in permitting it to stand, if for no other reason, because it is supported, with few exceptions, by the antiquity of uninterrupted practice, not only in this State, but generally in the courts of England and America. [Omitting minor points.] There are some other exceptions in the record, based upon the rulings of the court on the evidence. These we have examined, and find nothing of merit in them. The judgment of the court below is, in our opinion, free from error, and it is accordingly affirmed. GORDON V. TWEEDY. (74 Ala 232.) Judgment affirmed. - value of inchoate, how ascertained — judicial notice. The value of a wife's inchoate right of dower must be ascertained by the "American Table of Mortality," and judicial notice will be taken of it |