255 N.W. 191 | Mich. | 1934
Plaintiff sued defendant in assumpsit to recover the amount due on a land contract by which plaintiff sold defendant, August 2, 1928, a farm in Lapeer county for $9,800, $2,400 of which was paid down and $7,400 of which was deferred. August 18, 1929, defendant assigned the contract to Carlton M. Higbie who assumed and agreed to pay the balance due thereon. Shortly after the assignment of the contract, Higbie, by his attorneys, wrote plaintiff:
"Future payments upon this contract will be made to you by Mr. Higbie.
"Will you please acknowledge receipt of the copy of the assignment and if you have no objection thereto, indicate in your letter that you approve the assignment."
To which plaintiff replied:
"This is satisfactory with me so long as the terms of the contract are made promptly."
December 18, 1931, Higbie, by his agent, wrote plaintiff:
"He asks that principal payments be postponed for a period of two years and that he be permitted to make interest payments on the unpaid balance at the rate of six per cent. during that time as conditions and his circumstances will permit. He would arrange to keep the taxes paid, thereby protecting your interest in the property to that extent."
To which plaintiff, by her agent, replied:
"Mrs. Bigelow agrees to accept your proposition regarding payments, principal payments to be postponed for two years, interest to be paid and taxes kept up."
Higbie defaulted on the payments due on the contract. Plaintiff then brought suit. The defense *219
is based upon novation, the principles governing which have frequently received consideration by this court. Piehl v.Piehl,
"The fact that the vendors accepted payments from the assignee of the vendee did not bring about privity of contract between plaintiffs and defendant." Tapert v. Schultz, supra.
That plaintiff consented to receive payments from Higbie in performance of the contract is not sufficient to constitute novation. Fender v. Feighner, supra. There was no agreement had whereby plaintiff agreed with defendant to relieve him from liability; no consideration moved from defendant to plaintiff for such release; there was no agreement with defendant, plaintiff was to rely solely upon the assignee of the contract for the payments due thereon, and such an agreement will not be implied. Epworth Assembly v. Railway Co., supra; Fender v.Feighner, supra. There was no novation. Plaintiff is entitled to recover.
Judgment affirmed, with costs.
NELSON SHARPE, C.J., and NORTH, FEAD, WIEST, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred. *220
