35 Fla. 219 | Fla. | 1895
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,
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 ac
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
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.
