91 So. 6 | Miss. | 1922
delivered the opinion of the court.
The appellant, American Blakeslee Maunfacturing Company, sued the appellees, Martin & Son, for one thousand and fifteen dollars, due for certain machinery purchased by Martin & Son, but which was delivered to the Meridian Veneer Company, who succeeded Martin & Son in the veneer business. Martin & Son defended against the claim on the ground that the Meridian Veneer Company received the machinery and assumed to pay appellant for it, and thereby Martin & Son were released from the debt by no-vation.
The case was submitted to the jury on the question of whether or not the appellant had releásed appellee and substituted the Meridian Veneer Company as the debtor. The jury found from the facts and circumstances in evidence that there was a novation; and from this verdict and. judgment this appeal is prosecuted.
The facts and circumstances shown by the evidence are substantially as follows: Martin & Son owned and operated a veneer plant at Meridian, and ordered from the appellant certain machinery of the value of one thousand and fifteen dollars, which was shipped to Martin & Son. Before the machinery’arrived at Meridian, Martin & Son sold and delivered the veneer plant to the Meridian Veneer Company, and this company received and put in use the machinery in operating the plant. Some time afterwards, about sixty days, the appellant was notified by Martin & Son that they had sold the veneer plant to the Meridian Veneer Company, and that the Veneer Company had received the machinery and assumed the debt of one thousand and fifteen dollars, the purchase price of the machinery.
Following this the appellant demanded payment from
At the trial of the case no express agreement was shown between Martin & Son and the appellant that the Meridian Veneer Company was to be substituted as the sole debtor for the machinery in the place of Martin & Son. And it also appeared in the proof that the appellant rendered a bill and made demand of Martin & Son for payment of the debt about two months after the sale of the plant to the Meridian Veneer Company. But it does not appear from the record that the appellant made any demands or in any way evinced an intention to hold Martin & Son for the debt after accepting the Meridian Veneer Company as the debtor and after notice by Martin & Son that the Meridian Veneer Company had purchased the machinery and assumed the debt.
The simple question in the case is whether or not there was sufficient evidence introduced to warrant the jury in the finding of a novation, either express or by implication. If so, then the case was properly submitted to the jury, and there is no error.
The rule is well settled that the release of one debtor and the substitution of another may be implied from the facts and circumstances, though no express substitution is shown. And when the proof substantially tends to show that the creditor impliedly accepted the new debtor in the place of the old, and it does hot appear that the creditor clearly intended to hold both the new and the old debtor
We think the proof in this case was sufficient to submit the issue of novation to the jury for its decision, because it reasonably appears, from the facts and circumstances, that the appellant, when notified that the Yeneer Company had received the machinery and agreed to pay for it, then began to d'emand payment from the Veneer Company and considered it primarily liable for the debt, and relied no longer upon Martin & Son to pay it.
This intention of appellant to accept and substitute the Yeneer Company in the place of Martin & Son was further evidenced by its continuous pursuit in the collection of the debt from the Veneer Company, even following into the bankruptcy court a year after it had agreed with the Yeneer Company to hold it for the debt.
There is no conclusive proof in the record showing that appellant intended to hold both the new and old debtor for the debt, after the Yeneer Compány assumed the debt and the appellant accepted the new debtor. We think the jury was warranted in finding that the acts and conduct of the appellant impliedly proved the intent to accept the Veneer Company as the sole debtor in the transaction.
We find no decisions of our court that are exactly in point, but the authorities in other jurisdictions seem to be universal in holding that novation by implication may follow where the facts and circumstances demonstrate that it was the intention of the parties to substitute one debtor for another. The case of De Witt v. Monjo, 46 App. Div. 533, 61 N. Y. Supp. 1046, announces the rule very clearly, and in its facts is very much like the case before us.
The judgment of the lower court is affirmed.
Affirmed.
