#### Torry *v.*Krauss.

*Assumpsit.*

(Decided Feb. 14th, 1907.

43 So. Rep. 184.)

1. *Bankruptcy; Discharge; New Promise.*— A clear, distinct, unequivocal promise to pay a debt discharged, made after promisor has been adjudged a bankrupt, will support an action at law.

2. *Same; Pleading.*— Tinder a promise to pay a discharged debt by the bankrupt, the creditor may proceed upon the promise, or may sue on the original debt, and reply the new promise to a plea of the discharge in bankruptcy.

3. *Same; Ne%o Promise; Defmiteness.*— A promise to pay a debt discharged as soon as he is able binds the debtor, and is not void for uncertainty.

4. *Same; Action on Promise; Evidence.*— In an action on a new promise to pay a discharged debt it is necessary to allege and prove defendant’s ability to pay, where the promise was that he would pay as soon as able; and proof of ability to borrow money is not sufficient.

*5. Same.*— Where the evidence did not disclose that the promisor had property other than his salary, which was necessary, undisputedly, to support his family, he was entitled to a direction of the verdict, and it was not prejudicial error to exclude evidence of his ability to borrow money.

6. *Evidence; Conclusions.*— In order to determine bankrupt’s ability to pay it was permissible to ask him how much of his income was necessary for the support of his family, as such a statement was the statement of a collective fact and not a conclusion.

7. *Bankruptcy; Discharge; Neio Promise; Action; Evidence.*— In an action on a new promise to pay a discharge debt, an inquiry as to defendant’s earnings two years subsequent to the com meneement of the suit, was not proper.

8. *Same; Income of Debtor; Use of.-*— A debtor, liable on a new promise to pay a debt discharged as soon as he is able, is not required to guago his expenditures for the support of himself and family so as to enable him to meet the obligation;

*201Appeal from. Mobile Circuit Court.

Heard before Hon. SaaCl B. Browne.

Action by J. B. Torrey against D. Kraus.

Judgment for defendant, and plaintiff appeals.

Inge & Armbrecht, for appellant. —

The court erred in permitting the witness to state that it took every cent of his income to support his family at the time the suit was instituted. This was a. conclusion. The court erred in refusing to permit plaintiff to show what Krauss was receiving at the time of the *trial.-*— Feihle*man'v. Manchester F.*Am>. *Go.,*108 Ala. 198; *L. & K. R. R. Go. v. Hurt,*101 Ala. 44. A party may ask his. own witness whether or not, on a former occasion he has made statements inconsistent with his testimony on the *trial.*— Hem-mington *v. Garth,*51 Ala. 531; *White v. The State,*87 Ala. 26; *Thomas v. The State,*117 Ala.-181. The refusal of the court to permit plaintiff to show the ability of defendant to borrow money was er*ror.*— Krauss *v. Torrey,*40 South. 956.

R. W. Stoutz, for appellee. —

Under the issues in this case it was necessary to prove that defendant became able- to pay the indebtedness at or before the suit was tried. If ability to pay was not present until after suit filed the suit was *premature.*— Hooper *v. Birch-field,*115 Ala. 226; *Garter v. Peek,*121 Ala. 636; *L. & N. R. R. Go. v. Quinn-,*39 South. 616; *Birmingham Belt R. R. Go. v. Garganous,*37 South. 929. The question propounded to defendant as to what it took to support his family called for a collective statement of facts and not a conclusion. *-*— Shafer *v. Hausman,*139 Ala. 237. Under the evidence in this case the court might well have given defendant the affirmative charge, and if error intervened it was without *injury.*— Griffin *r. Bass <£ Go.,*135 Ala. 490.

DENSON, J. —

The plaintiff declared on a promissary note for $175, executed on the 18th day of October, 1899, by the defendant, payable to McMillan Bros., 90 days after date, which note, it is averred, was duly assigned to the plaintiff. The defendant pleaded, a discharge in bankruptcy in bar of the action. The plain*202tiff replied that after the defendant had been adjudged a bankrupt, and after being discharged, the defendant promised to pay the debt for which the suit was brought as soon as he became able, and averred in replication that “the defendant is now able to pay the debt.” Issue was joined on the replication, and trial had thereon, but at the conclusion of the evidence, on the defendant’s motion, the court excluded “the evidence having reference to advances of loans, because it is not property, and does not show an ability to pay, but only an ability to borrow.”

It is the settled doctrine of this court, supported by adjudications of the courts of other jurisdictions, that after a debtor has been adjudged a bankrupt he may, by a new promise to pay the original debt, if clear, distinct, and unequivocal, become liable therefor in an action at law; and the creditor may sue directly on the new promise, or, at his election, on the original debt, and reply the new promise to a plea setting up the discharge in *bankruptcy.*— Wolf *v. Eberlein, 74*Ala. 99, 49 Am. Rep. 809; *Griel v. Solomon,*82 Ala. 85, 2 South. 322, 60 Am. Rep. 733; *Kraus v. Torry,*146 Ala. 548, 40 South. 956, and cases there cited. In *Griel v. Solomon, supra,*it is said: “Such a promise may be either absolute, or it may be conditional. But, if dependent on a condition or contingency, this fact must be stated by the pleader; and it must be averred and proved that the condition has been performed, or the contingency has happened. A piomise to pay so soon as the banlcrupt is able is a valid condition, not void for uncertainty, and is so held generally by the authorities. But, to be available, ' the promise must be averred in the proper form, and satisfactory proof adduced of the defendant’s ability to pay; that is, the fact that he has sufficient property or means to *pay.”*— Mason *v. Hughart,*9 B. Mon. (Ky.) 480; Hilliard on Bankruptcy, 226; *Kraus v. Torry,*146 Ala. 548, 40 South. 956.

When the case was here on a former appeal, we said, through Dowdell, J.: “That the defendant may borrow money is not alone sufficient to show his ability to pay his debts; for he might borrow on the bare face of his word and promise, as many good men have done, with*203out owning any property whatever. This is not what the law means in such a case, when speaking of his ability to pay, coupled with his promise to pay when lie was able; but, as stated in the authority above, it means that he has sufficient property or means to pay. Proof of ability to borrow might be competent as a circumstance in evidence for the consideration of the jury, in determining Avhether the defendant had sufficient property or means Avhcrewith to pay, but not of an ability to pay Avithout such property or means. ' The trial court seems to have proceeded upon the theory that ability to borrow was evidence of ability to pay. This theory was er*roneous.”-*— Kraus *v. Torry,*146 Ala. 548, 40 South. 956. There Avas no effort made to show that the defendant had any means or property apart from his salary of $300 per month, and the undisputed proof showed that it required all of the salary to support the defendant and his family; so that, in accordance Avitli the ruling made in the cast1 on the former appeal, the defendant was, on the evidence as it stood Avhen the case Avas closed, entitled to the general affirmative charge, if it had been requested in Avriting. This being true, it follows that there Avas no error prejudicial to the plaintiff in granting the motion made by the defendant to exclude the *evidence.-*— Griffin *v. Bass Foundry & Machine Co.,*135 Ala. 490, 33 South. 177.

The question propounded to the defendant on 'his cross-examination by his counsel, namely, “How much of your income was it necessary for you to use for the support of yourself and family at the time this suit Avas instituted?” aauis not subject to the objection that it called for a conclusion of the Avitness. That which Avas called for Avas only a collective fact, or shorthand rendering of the *facts.*— Shafer *v. Hausman,*339 Ala. 237, 243, 35 South. 691, and cases there cited.

The court properly sustained the objections propounded to the defendant on his rebuttal examination, by the plaintiff, the rulings in reference to which are covered by the second, third, and fourth grounds in the assignment of errors. On the former appeal it was held that the inquiry in respect to the defendant’s earnings, and necessarily his net earnings after paying iiis *204family expenses, should he limited to the time previous to the commencement of the suit The question under consideration called for evidence relating to transactions or conditions subsequent to the commencement of the suit — two years subsequent. Moreover, while such a course might be commendable, we know of no rule of law by which the defendant should be required to gauge his family expenditures so as to make himself possessor of means to meet promises of the kind in question. It may well be that a person receiving a stipulated sum as a. monthly income, and consuming it all in the support of his family, would, if that sum should be reduced by one-half, endeavor to curtail family expenses, so that they would not exceed the income. At the same time, “the laws of the land do not require that a debtor whose family is in need, or who is himself exhausted by a protracted struggle with poverty and misfortune, should prefer a creditor to his family, or that he should appropriate his earnings to the payment of a debt from which the judgment of the law has released him, rather than to the support of his family or to his own comfort.”— *Allen v. Ferguson,*18 Wall. (U. S.) 1, 21 L. Ed. 854.

Furthermore, if the witness had answered the question in the affirmative, or as the plaintiff desired, yet the uncontradicted evidence that .all of defendant’s earn" ings were consumed in the support of his family prior to the commencement of the suit would have remained before the jury; and it was not proposed by the plaintiff to show that any of the earnings were saved.

AVe find no error prejudicial to the plaintiff in the record, and the judgment appealed from is affirmed.

Tyson, C. J., and Dowdell and Simpson, JJ., concur.