Opinion
October 18, 1928.
November 21, 1928.
Sales — Coal — Bankruptcy — Discharge — Husband and wife.
In an action of assumpsit against a husband and wife for the price of coal sold and delivered, the evidence disclosed that the coal was ordered by or on behalf of the husband. The defense was that subsequent to the date of delivery of the coal, the husband was adjudicated a bankrupt, from which he had received a discharge. There was no evidence that the debt was excepted from the operation of the discharge. In such case judgment for the plaintiff will be reversed.
Where a bankrupt is sued on a debt existing at the time of filing the petition in bankruptcy the introduction of the order of discharge makes out a prima facie defense; the burden being then cast upon the plaintiff to show that because of the nature of the claim, failure to give notice or other statutory reason, the debt sued on was excepted by law front the operation of the discharge.
Appeal No. 271, October T., 1928, by defendants from judgment of M.C., Philadelphia County, May T., 1927, No. 556, in the case of David I. Mann v. Meyer Benus and Frances Benus.
Before HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Reversed.
Assumpsit against husband and wife for goods sold and delivered. Before BROWN, J., without a jury.
The facts are stated in the opinion of the Superior Court.
The court found for plaintiff in the sum of $118.81 and entered judgment thereon. Defendant appealed.
Error assigned, among others, was the refusal of defendant's motion for judgment non obstante veredicto.
Lester Lichtenstein, and with him Sundheim, Folz Sundheim, for appellants, cited: Kreitlein v. Ferger, 238 U.S. 21, 26; Hill et al. v. Smith, 260 U.S. 592, 594; Fitzpatrick v. Bates, 92 Pa. Super. 114. George S. Wolbert, for appellee, cited: Beihl v. Martin, 236 Pa. 519; Saxman v. McCormick, 278 Pa. 268.
Argued October 18, 1928.
Defendants, husband and wife, appealed from a judgment in a suit for the price of coal alleged to have been sold and delivered to them. The husband admitted in his affidavit of defense that he had ordered all of the coal, but denied that any of it was purchased by his wife. The defense alleged by him was that subsequently to the delivery of the coal he had been adjudged a bankrupt; that the debt sued for was listed in his schedule of debts filed; and that he had received his discharge in bankruptcy. The wife denied that any of the coal was purchased by or for her. At the trial plaintiff called but one witness. He testified that he was a selling agent for plaintiff; that all of the coal, except three tons, was ordered by the husband in person; and that "Mrs. Benus ordered that for him." Manifestly this evidence utterly fails to support a finding against the wife. It is equally clear that the judgment against the husband cannot stand. His discharge in bankruptcy, as pleaded, was admitted by counsel for appellee at the trial. Where a bankrupt is sued on a debt existing at the time of filing the petition, the introduction of the order of discharge makes out a prima facie defense, the burden being then cast upon the plaintiff to show that, because of the nature of the claim, failure to give notice or other statutory reason, the debt sued on was by law excepted from the operation of the discharge: Kreitlein v. Ferger, 248 U.S. 21. See also Hill v. Smith, 260 U.S. 592. The more fact that the contracts entered into by the husband might have resulted in a joint debt would not prevent him from listing the debt in his bankruptcy schedules and securing a discharge from the debt. (See Bankruptcy Act of July 1, 1898, section 17, as amended by the Act of January 7, 1922.) As there was no evidence that the debt sought to be collected from the husband in this suit was excepted from the operation of the discharge in bankruptcy, the judgment against him cannot stand. It follows that the motion for judgment n.o.v. should have been granted.
The judgment is reversed and here entered for defendants.