20 Ind. App. 309 | Ind. Ct. App. | 1898
Caroline Hill brought suit in replevin against appellees. Upon her death before trial appellants were substituted as plaintiffs. Appellee Warner had leased a farm from Caroline Hill, and to secure the payment of the rent had executed his notes secured by chattel mortgage. The suit was brought for possession of the mortgaged property by virtue of one of the provisions of the mortgage. Appellee Warner answered in denial, and also a novation. Judgment was rendered in appellee’s favor for costs. A motion for a new trial on the grounds that the find
The only question presented and argued is whether the evidence shows there was a novation. This was the only defense attempted to be made by the evidence.
In the fall of 1895 Warner leased a farm from Mrs. Hill and took possession and executed three promissory notes, aggregating $200.00, for the rent; the notes secured by chattel mortgage. In March, 1896, Warner moved off the premises, and on the same day one Baxter mov.ed on. Baxter and Warner had agreed that Baxter should become paymaster for the balance of the rent Warner had agreed to pay.
Baxter testified that he and Warner went to see Mrs. Hill, that, “Mr. Warner told her that he didn’t want to stay on the place; that he wanted to give up the place and let me have it, and I really can’t tell just what was said in regard to it, because she was sick, and said she was not able to talk with him.” The witness further said that they made no definite arrangements at all at that time, and that when witness did go back to make arrangements Warner was not with him, and that was the only time he and Warner were there together. Mrs. Emily Hill testified that she was present when Warner and Baxter saw Mrs. Hill, and that Warner requested her to release him and take Baxter, but that she refused. Mr. Woodruff testified to the same thing. There is no evidence in the record that the three parties together ever had any other conversation about the matter.
Baxter further testified: That he' saw Mrs. Hill the day befox*e he moved, and she consented to his moving and to Warner moving, and witness asked her if he should give her a note and personal security, or
Novation is a newT contract made with intent to extinguish one already in existence. The doctrine is of civil law origin. It may be made by the substitution. of a new contract between the same parties in place of the old one; or by substituting a new debtor in place of the old one with intent to release the old debtor; or by substituting a new.creditor to whom is transferred all the rights of the old creditor. In each of these cases the extinguishment of the old debt constitutes the consideration for the new obligation.
In the case at bar there is a failure of proof that there was a meeting of the three minds upon the proposition that the old debt should become the obligation of a new debtor. There is no evidence to show, either that there was a mutual agreement among all the parties to substitute a new debtor for the old debtor, or that there was an extinguishment of the old debt. The motion for a new trial should have been sustained. Judgment reversed.