Drown v. Forrest
| Decision Date | 01 August 1891 |
| Citation | 22 A. 612,63 Vt. 557 |
| Parties | AARON DROWN AND O. T. WILLARD v. JOHN FORREST, JR |
| Court | Vermont Supreme Court |
MAY TERM, 1891
Assumpsit. Plea, the general issue with notice of special matter. Trial by jury at the September term, 1890, Powers J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.
Judgment affirmed.
F W. Baldwin and W. W. Miles, for the defendant.
As the declaration brings the case within the jurisdiction of the County Court, the mere fact that the testimony did not, was not decisive against jurisdiction. It was necessary to go further, and negative plaintiff's good faith in bringing the suit, by showing, at least, a probable consciousness on his part that he was not entitled to recover more than a justice could award. Spafford v. Richardson, 13 Vt. 224; Joyal v. Barney, 20 Vt. 154.
By the Roman law, a new contract between the original contracting parties only that dissolved an existing contract, was regarded as a novation. But there was no novation unless the second contract contained something new, as, for instance, the addition or suppression of a condition, a term, or a surety, and was performed. Some of the ancient jurists were of the opinion that novation took place only when the second contract was entered into for the purpose of making the novation, and consequently doubts arose as to when such intention was to be supposed to exist, and different presumptions were laid down by those who treated the subject according to the different cases they had to settle. In consequence a constitution was published, in which it was clearly decided that novation should take place only when the contracting parties expressly declared that their object in making the new contract was to extinguish the old contract; otherwise the old contract remained in force and the new contract was added to it, and each gave rise to an obligation still in force. Inst. Lib. III. Tit. XXIX. pl. 3.
But by the common law if the parties to a contract make a new and an independent agreement concerning the same matter, and the terms of the latter are so inconsistent with those of the former that they cannot stand together, the latter may be construed to discharge the former. Benjamin's Principals of Contracts, 114.
On August 19, 1879, Drown, having previously bought out Willard sold to Forrest an undivided half of the blacksmith shop mentioned in the agreement sued upon, and they two then went into partnership in the business of blacksmithing therein, and carried on the...
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