Fraley v. . Kelly , 79 N.C. 348 ( 1878 )

The defendant being indebted to the plaintiff was adjudged a bankrupt, and the plaintiff brings this action for (349) the same debt, and declares on a new promise. The plaintiff testified that after the adjudication in bankruptcy he presented his note to defendant and he said: "Your debt and Mose Wagoner's I will pay if I live." He also testified that on another occasion defendant said to him: "Count the interest on the note and add the principal and send it to me at Raleigh, and I will make a draw and send you the money for the note." There were some other conversations between them, and it was in evidence that the defendant was solvent before the commencement of this action.

This issue was submitted to the jury: "Did the defendant, after he went into bankruptcy and before he obtained his discharge, make an unconditional and unequivocal promise to pay the debt he owed the plaintiff?" to which the jury responded, "Yes."

This finding would seem to leave no question in dispute. We have said several times that the defendant is liable on the new promise under such circumstances. Fraley v. Kelly, 67 N.C. 78; Hornthal v. McRae, Ib., 21;Henly v. Lanier, 75 N.C. 172; Randidge v. Lyman, 124 Mass. 361.

Affirmed.

Cited: Fraley v. Kelly, 88 N.C. 227.