241 N.W. 156 | Mich. | 1932
A summary judgment was entered in favor of the plaintiff in an action at law to recover the unpaid balance on a land contract. Defendant appealed.
The plaintiff is survivor of William Aben and Annie Aben, his wife, vendors in a land contract. Hyman D. Dorman was the vendee. He assigned to the defendant, Esther Rice. In the assignment she assumed and agreed to pay the unpaid balance. At the same time and in the same instrument, the plaintiff consented to the assignment and released Mr. Dorman from further liability on the purchase price. Defendant went into possession and made some payments on the contract. Subsequently she got in default and this suit was begun. After it was at issue, the plaintiff moved for a summary judgment, which the court granted. The defendant filed an affidavit of merits, in which the only defense is stated as follows:
"That this deponent (defendant) never signed any agreement to which the plaintiff was a party agreeing to pay the said plaintiff any sum of money whatsoever."
The issue presented is one of law. The defendant contends that there was no privity of contract between *301
herself and the plaintiff; and that the question involved is ruled by Tapert v. Schultz,
Consent of all the parties to the novation is necessary, but need not be expressed in writing. It is sufficient if it appears from the facts and circumstances attending the transaction. Harrington-Wiard Co. v. Blomstrom Manfg. Co.,supra.
Consideration for the novation is essential, but that is furnished by the mutual agreement of the parties.
In Bacon v. Bates,
"The promise, agreement, and undertaking of each party, was a sufficient consideration for the *302 promise, agreement, and undertaking of every other party to such novation."
Also, see 20 Rawle C. L. p. 367.
On the theory of novation, the judgment of the trial court is affirmed, with costs to the plaintiff.
CLARK, C.J., and POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.