Tysen v. Somerville

• Decision Date: 24 January 1895
• Parties: TYSEN et al. v. SOMERVILLE.
• Court: Florida Supreme Court

17 So. 567

35 Fla. 219

TYSEN et al. v. SOMERVILLE.

Florida Supreme Court

January 24, 1895

Appeal from circuit court, Duval county; W. B. Young, Judge.

Action by W. M. Somerville against J. R. Tysen & Co., a partnership. Plaintiff had judgment, and defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. The law is well-settled that where A. owes B., and C. owes A and C. agrees with A. to pay the debt that A. owes to B., and that thereupon C.'s indebtedness to A. shall be extinguished and discharged, in such a case B. cannot sue and recover his claim against A. out of C. upon the latter's promise to A. to pay it, unless B. has extinguished his claim against A. in whole or in part, and agreed to accept C. as his debtor instead of A. In such a case, in the absence of assent on the part of B. and his release of A., there is no privity of contract as between B. and C. that will support an action by B. against C. upon the latter's promise made to A. The novation can exist only by the mutual consent and agreement of all the interested parties.

2. When the dissolution of an old firm of partners occurs, and a new firm, taking it place, agrees to assume the liabilities of the old, but slight circumstances are required to justify finding an intention on the part of a creditor of the old firm, who has notice of such dissolution and assumption of liability, to accept the liability of the new firm instead of the old.

COUNSEL H. H. Buckman, for appellants.

R. B. Archibald, for appellee.

OPINION

TAYLOR, J.

W. M Somerville, the appellee, sued the appellants, J. R. Tysen and Samuel Barton, partners under the firm name of J. R Tysen & Co., in an action of assumpsit in the circuit court of Duval county, and recovered judgment for $100, from which J. R. Tysen & Co. appeal.

The declaration alleges: That on the 1st day of January, 1888, a certain firm, composed of J. R. Tysen, C. B. Smith, and Samuel Barton, doing business in Duval county under the firm name of Tysen, Smith & Co., was indebted to the plaintiff in the sum of $500 for labor and services of the plaintiff by him before that time done and bestowed for the said firm of Tysen, Smith & Co. at their request, and for money paid by plaintiff for said firm at their request; and, being so indebted, the said firm of Tysen, Smith & Co., in consideration thereof, then and there promised to pay him the said sum of money on request; yet, though requested, the said firm of Tysen, Smith & Co. has never paid the same. That afterwards the defendants J. R. Tysen and Samuel Barton, partners under the firm name of J. R. Tysen &amp Co., bought out the said business of the firm of Tysen, Smith & Co., and, as part of the consideration therefor, undertook and agreed in writing (but not under seal) with the retiring partner of said firm of Tysen, Smith & Co. to pay the plaintiff the said sum of $500 due him; and then and there to wit, on the 1st day of January, A. D. 1889, the defendants J. R. Tysen & Co. became liable and promised to pay the plaintiff the said sum of money on request; and the said defendants, although requested, have failed and refused, and still refuse, to pay the same, to the plaintiff's damage of $500; and thereupon he brings suit, etc. To this declaration the defendants demurred, on the ground that no privity between the plaintiff and defendants was shown to exist, and because the declaration did not set up any cause of action against the defendants. This demurrer was overruled, and the ruling thereon is assigned as error.

The court below did not err in overruling this demurrer. The law is well settled that where A. owes B., and C. owes A., and C agrees with A. to pay the debt that A. owes to B., and that thereupon C.'s indebtedness to A. shall be extinguished and discharged, in such a case B. cannot sue and recover his claim against A. out of C. upon the promise made by the latter to A. to pay it, unless B. has extinguished his claim against A. in whole or in part,...