Gaston v. Owen

43 Wis. 103 | Wis. | 1877

Ryan, C. J.

The question on the statute of frauds, discussed in the briefs of counsel, does not appear to arise in this case. As suggested on the argument by the learned counsel for the respondent, the case made by the complaint is clearly one of novation, going upon the substitution of the respondent for McCann, as debtor to the appellant. The complaint contains the averments material to such a case, and excludes any other liability of the respondent.

It avers that, at the time of the substitution, the respondent was indebted to McCann in as large an amount as McCann was indebted to the appellant. This was a material averment. For it is upon the ground that the debtor assumes no new liability, but only changes his creditor, promising to pay an old debt to a new creditor, the creditor of his creditor, that the fioctrine of novation rests. And it was necessary to the appellant’s case to give evidence in support of his averment that the respondent, at the time of his promise, was indebted to McCann in the amount which he promised to pay to the appellant, satisfying fro tanto an existing debt to McCann. Addison on Contracts, 272-277; 1 Parsons on Contracts, 217-222; Story on Contracts, §§ 479-488.

We cannot hold that there was any evidence to go to the jury on the point. It was in proof that there was a subsisting executory contract between McCann and the respondent, by which the latter might probably become indebted to the former; but no evidence was given tending to show the relations of the parties or the state of their account," on foot of the contract, at the time of the transaction. It is true that the respondent made a payment for McCann to the appellant; but that could raise no presumption of a present debt larger than the payment itself; hardly of that. It appears also that the respondent promised to pay the balance in suit here, at a future day. Any presumption from the promise would be, to say the least, ambiguous; as much perhaps against, as for, the recognition of a present debt to McCann. We cannot think that it would be safe to submit such a promise to a jury, as a fact tending to show a present debt. The same ground might be open in every case to uphold a voluntary promise to pay the debt of another. These are the only circumstances in evidence which could have any possible bearing on the indebtedness of the respondent to McCann. And none of them, nor all together, would be sufficient to support a finding of the fact.

We must therefore hold that the nonsuit was properly granted. Whether or not the appellant might then have amended his complaint, so as to make a case on the order of McCann, or whether he could recover against the appellant on the order, are questions not now here. The appellant did not ask to amend; and he had no right to,go to the jury on a case essentially different from his pleading. The difficulty was not a variance. It arose from proof tending to show one contract, under a complaint setting up an essentially different one. Andrews v. Powers, 35 Wis., 644; Young v. Lego, 36 id., 394; Pierce v. Carey, 37 id., 232.

By the Court. — The judgment of the court below is affirmed.