The action of the court in sustaining the demurrer to the defendant's plea constitutes the only question presented upon this appeal. *Page 90
It is settled law that after the 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. "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 promise to pay so soon as the bankrupt 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." Torry v. Krauss, 149 Ala. 200, 43 So. 184.
It is shown by the plea that contemporaneously with the execution and delivery of the notes, and as a part of the same transaction, it was agreed by the plaintiff — by the writing, which is set out in said plea — that, in the event the defendant could not meet the notes as they fell due, the same would be extended, and that this written agreement was delivered to the defendant at the same time the notes were delivered by the plaintiff, and formed a part and condition of said delivery.
Construing the notes and this written agreement together, as under these facts should be done, it was clearly meant that the defendant would pay these notes at maturity, provided he was able to do so; and, if not so able, that their time of payment would be extended until such time as he could be in position to meet the same. As disclosed by the above authority, this was a valid condition. While some of the language of the plea would indicate that it was a plea in bar of action, yet in substance and effect it was in reality but a plea in abatement, acknowledging the execution of the notes, but setting up that they are not now due because they were dependent upon a condition — the ability of the defendant to pay the same — which condition has not yet been met.
The two assignments of demurrer place the duty upon the defendant to renew, or offer to renew, the notes as they respectively fall due. But we are of the opinion that this is a misconstruction of the contract entered into between the parties, and that the court below committed reversible error in sustaining the demurrer to such plea.
It results that the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.