J. R. Tysen & Co. v. Somerville

| Fla. | Jan 15, 1895

Taylor, J.:

W. M. Somerville, the appellee, sued the appellants,. J. R. Tysen and Samuel Barton, partners under the firm name of J. R. Tysen & Co., in an action of assumpsit in the Circuit Court of Duval county, and recovered judgment for one hundred dollars, from which J. R. Tysen & Co. appeal.

The declaration alleges that on the first day of January, 1888, a certain firm, composed of J. R. Tysen,. C. B. Smith and Samuel Barton, doing business in Duval county under the firm name of Tysen, Smith & Co., was indebted to the plaintiff in the sum. of five hundred dollars for labor and services of the plaintiff by him before that time done and bestowed for the said firm of Tysen, Smith & Co. at their request, and for money paid by plaintiff for said firm at their request; and being so indebted the said firm, of Tysen, Smith & Co., in consideration thereof then and there promised to pay him the said sum. of money on request, yet, though requested, the said firm of Tysen, Smith & Co. has never paid the same. That afterwards the defendants, J. R. Tysen and Samuel Barton, partners under the firm name of J. R. Tysen & Co., bought out the said business of the firm of Tysen, "Smith & Co., and as part of the consideration therefor undertook and agreed in writing (but not under seal) with the retiring partner of ;said firm of Tysen, Smith & Co. to pay the plaintiff the said sum of five hundred dollars due him; and then :and there, to-wit: on the first day of January, A. D. 1889, the defendants J. R. Tysen & Co. became liable and promised to pay the plaintiff the said sum of money on request; and the said defendants, although requested, have failed and refused, and still refuse, to pay the same, to the plaintiff’s damage of five hundred dollars, and thereupon he brings suit, etc. To this -declaration the defendants demurred on the ground -that no privity between the plaintiff and defendants was shown to exist, and because the declaration did not set up any cause of action against the defendants. This demurrer was overruled, and the ruling thereon is assigned as error.

The court below did not err in overruling this demurrer. The law is well settled that where A owesB, and C owes A, and C agrees with A to pay the debt That A owes to B, and that thereupon C’s indebtedness to A shall be extinguished and discharged, that, in .such a case B can not sue and recover his claim against A out of C upon the promise made by the latter to A to pay it, unless B has extinguished his claim against A, in toliole or in part, and agreed, to accept O a,s his debtor instead of A. In the absence of assenc on the part of B and his release of A, there is no privity of contract as between B and C that will support an action. by B against C upon the latter's s promise to A. 1 Parsons on Contracts (7th ed.), p. 244 et seq. and citations; Murphy vs. Hanrahan, 50 Wis. 485" court="Wis." date_filed="1880-11-30" href="https://app.midpage.ai/document/murphy-v-hanrahan-6603294?utm_source=webapp" opinion_id="6603294">50 Wis. 485; Trimble vs. Strother, 25 Ohio St. 378; Kountz vs. Holthouse, 85 Pa. St. 235; Bilborough vs. Holmes, L. R. 5 Ch. Div. 255; Butterfield vs. Hartshorn, 7 N. H. 345, S. C. 26 Am. Dec. 741; Ford vs. Adams, 2 Barb. 349" court="N.Y. Sup. Ct." date_filed="1848-01-04" href="https://app.midpage.ai/document/ford-v-adams-5457279?utm_source=webapp" opinion_id="5457279">2 Barb. 349. The novation can exist only by the mutual consent and agreement of all the interested parties.

The institution of this suit by the plaintiff, expressly claiming a recovery from the new firm of J. R. Tysen & Co. by virtue of their alleged promise, for a valuable consideration to the old firm of Tysen, Smith & Co., to pay all of the old firm's debts, is, of itself, tantamount to an assent by him to the novation provided for, and, of itself, is equivalent to a release and cancellation of his claim against the old firm of Tysen, Smith & Co.; and were he hereafter to attempt to enforce the same claim against the old firm of Tysen, Smith & Co., the fact of his institution of this suit against the new firm upon their promise to pay the debts of the old firm would' operate as an estoppel in bar of recovery. The declaration alleges further, in connection with the asserted promise of the new firm to pay the old firm’s debts, that the plaintiff had requested of the new firm a compliance with' their said promise, but they had failed and refused to do so. This alleged demand by the plaintiff is tantamount to an acceptance by him of the new firm as his debtors instead of the old, and, consequently, taken in connection with his suit upon the promise of the new firm, amounted to a release of his claim against the old firm. When the dissolution of an old firm occurs and a new firm agrees to assume the liabilities of the old, but slight circumstances are required to justify finding an intention on the part of a creditor of the old firm, who has notice of the dissolution and agreement, to accept the liability of the new instead of the old firm. Regester vs. Dodge, 19 Blatch. 79, S. C. 61 How. Pr. 107" court="U.S. Cir. Ct." date_filed="1881-02-15" href="https://app.midpage.ai/document/regester-v-dodge-6226668?utm_source=webapp" opinion_id="6226668">61 How. Pr. 107. We think the demand alleged here on the new firm, and the institution of suit against it on its promise, is sufficient to show an intention on the plaintiff’s part to accept the new firm as his debtors, and to discharge the old. For these reasons we think the plaintiff’s declaration exhibited in him the right to sue upon the alleged promise of the new firm to pay his debt among the other debts of the old firm, and the court’s ruling upon the demurrer to such declaration was proper.

There was no error in the admission in evidence of the drawings, plans and specifications for a steamboat.. The making of such drawings, plans, etc., for the defendants at their request, comprised one of the items-of the plaintiff’s account sued on; the exhibit of such drawings, plans, etc., to the jury was proper for the determination by them of the quantum meruit of that item of work done by the plaintiff for the defendants.

Without quoting the instructions excepted to, it is-sufficient for us to say that we have considered them all, and find no error therein. While the testimony in the cause is such that we might possibly have arrived at a different verdict from the one found, had we been members of the jury, yet there is evidence to sustain the verdict found, and we, consequently, can not disturb it.

We find no error in the record, and the judgment of the court below is therefore affirmed.