M. Gimbell & Sons v. King

• Decision Date: 09 May 1906
• Citation: 95 S.W. 7
• Parties: M. GIMBELL & SONS v. KING et al.
• Court: Texas Court of Appeals

95 S.W. 7

M. GIMBELL & SONS v. KING et al.

Court of Civil Appeals of Texas.

May 9, 1906.

Rehearing Denied June 6, 1906.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Action by M. Gimbell & Sons against C. S. King and another. From a judgment for plaintiffs against one only of defendants, plaintiffs appeal. Reversed and rendered.

Fleming & Fleming, for appellant. G. P. Dougherty and Joe Williams for appellee.

FLY, J.

Appellants instituted suit against C. S. King and W. H. Spurlock to recover $453, alleging that they had sold King certain goods and merchandise, whose value amounted in the aggregate to the sum specified, which he had agreed to pay, and that Spurlock had executed his promissory note for the same sum. The circumstances were alleged to be that Spurlock was indebted to King, and appellants were about to have a writ of garnishment served on him, when he agreed to and did give the promissory note sued on. King answered that he had purchased the goods from appellants and had sold them to Spurlock, who had agreed to assume the debt due appellants, and that the latter agreed to accept Spurlock's obligation to pay the debt and to release said King, and in pursuance of the agreement had accepted the note from Spurlock in payment for the goods. The court instructed the jury to return a verdict in favor of King, and against Spurlock for the debt.

The uncontradicted evidence showed that the account against King was placed in the hands of an attorney who ascertained that Spurlock was indebted to King for goods sold to him, and he went to Spurlock and told him that suit would be instituted against King by appellants, and a writ of garnishment obtained against Spurlock. The latter told the attorney that he owed King and had agreed to pay the debt due appellants. He told the attorney that he did not have the cash, but would give him a note for the amount. The note was given. There was no agreement on the part of appellants, who were in Chicago, nor on the part of the attorney to release King from liability. There was no agreement whatever made with King, nor any with Spurlock as to taking him for the debt instead of King, and the court must have concluded that the taking of the note by appellants was in law a substitution of a new debtor in the place of King, and that he was thereby released. Novation is effected by the substitution of a new obligation between the same parties with the intention to extinguish the old one, or by the substitution of a new debtor with the intention to release the old one; or by the substitution of a new creditor with the intent to transfer the rights of the old one to him. Beach. Mod. Con. § 786. If the facts make a case of novation it necessarily belongs to the second class, that of substituting a new debtor for the old one. In order to make a case of that kind there must be a mutual agreement among the parties, the creditor, his immediate debtor and the new debtor, for the substitution of the new debt in the place and stead of the original debt. Add. Con. p. 530. As said by that author, "the intention of the creditor to discharge the first debtor to accept of the second in his stead, must be perfectly evident." Novation can only exist by mutual consent and agreement of all the interested parties, and it is subject to the same rules of evidence that obtain in regard to any other kind of contract. Not only is it necessary to prove that the creditor took a new debtor, but it must be made to appear, in order to release the old debtor, that there was an extinguishment of the old debt and an...