216 S.W. 541 | Mo. Ct. App. | 1919
This is a suit on a negotiable promissory note made, executed and delivered by defendants to plaintiff in the sum of $3750 dated, Corder, Missouri, February 27, 1917, due two years after date. The note was given as part of the purchase price of a store building in Corder, Mo., and was secured by a deed of trust given by defendants to plaintiff on said building. Before the note became due defendants sold and conveyed the store building to one William A. Lobdell, who assumed the note and mortgage as part of the purchase price of said property and agreed to pay the same. Before and after said sale plaintiff through his agent, one Arnold, orally agreed with defendants that he would release the defendants from liability on the note and would accept the purchaser of the property in their stead. One of the defenses was that there was a novation, that is, that defendants were released *346 from liability on the note and Lobdell was substituted for them. On behalf of plaintiff the court instructed the jury that if they found the facts as set forth above, their verdict should be for the defendants. The jury returned a verdict in favor of the defendants and plaintiff has appealed.
We think that the agreement whereby the defendants were released and Lobdell accepted in their place on the note would be sufficient to show a novation (Brown v. Kirk,
"The holder may expressly renounce his rights against any party to the instrument before, at or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon."
It is held that the renunciation mentioned in the negotiable instrument law is equivalent to a release. [Baldwin v. Daly,
The judgment will be reversed and the cause remanded. All concur. *347