Combs v. Jameson

• Citation: 236 Ky. 733
• Parties: Combs et al. v. Jameson.
• Decision Date: 19 December 1930
• Court: United States State Supreme Court (Kentucky)

236 Ky. 733

Combs et al. v. Jameson.

Court of Appeals of Kentucky.

Decided December 19, 1930.

1. Novation. — "Novation" may be effected by substitution of new debtor in place of old with intent to release latter.

2. Novation. — Purpose to release old debtor may be inferred from circumstances attending transaction and subsequent conduct of parties.

3. Novation. — Mere giving and acceptance of order on third person does not operate to release primary debtor, in absence of agreement or intention that it should have that effect.

4. Novation. — In suit on note, evidence warranted conclusion that no novation was accomplished where creditor accepted order on third party which it agreed to pay.

5. Appeal and Error. — Defense of laches not pleaded could not be presented for first time in appellate court.

6. Equity. — Debtor consenting to creditor's delaying action against acceptors of debtor's order could not avail himself of defense of laches.

Appeal from Perry Circuit Court.

S.W. WARD for appellants.

W.A. STANFILL and CRAFT & STANFILL for appellee.

OPINION OF THE COURT BY JUDGE WILLIS

Affirming.

Wm. K. Jameson sued James Combs, his wife, Belle Combs, W.G. Begley, Roderick Combs, L.F. Brashear, trustee, and the Draughn-Steele Motor Company, to recover a balance due upon a promissory note for $2,000, executed by Combs and wife and Begley, and to enforce a lien on land by virtue of a mortgage given to secure the debt.

The Draughn-Steele Motor Company had acquired a portion of the land and assumed a part of the debt, but the deed, at its instance, had been made to the trustee.

Roderick Combs was made a party because of some adverse claim he was making to the land.

James Combs and wife interposed the defense that the Draughn-Steele Motor Company and L.F. Brashear, trustee, agreed to assume and pay the debt due Jameson, and that Jameson had agreed to look alone to that source for his money and to release his rights against Combs and wife, as well as Begley, the original makers of the note. Issue was made upon the defense, proof was taken, and the circuit court held in favor of Jameson. Combs and wife alone appeal from the judgment.

It is first insisted that the acceptance by Jameson of an order on the motor company, which it agreed to pay, constituted a novation, and released the original obligors from the debt.

A novation may be effected by the substitution of a new debtor in place of the old one with the intent to release the latter, 46 C.J. p. 606, sec. 60; Russell v. Centers, 153 Ky. 469, 155 S.W. 1149; Kushner v. Knopf, 227 Ky. 369, 13 S.W. (2d) 271. The purpose to release the old debtor may be inferred from the circumstances attending the transaction, and the subsequent conduct of the parties ...