Opinion by
Philips, P'. J.
1. The order drawn by Canole, in contemplation of law, is an inland bill of exchange. Taylor v. Newman, 77 Mo. 257" court="Mo." date_filed="1883-04-15" href="https://app.midpage.ai/document/taylor-v-newman-8007298?utm_source=webapp" opinion_id="8007298">77 Mo. 257. As such no action could be maintained thereon against the drawee because it was not accepted in writing, nor was there any written promise to accept it. Secs. 533 and 535 Rev. Stat.
Counsel are in error in assuming that the defendant cannot avail himself of this defence on the ground that he has not specifically pleaded it in his 'answer. This issue is well tendered, as to this petition, by the general •denial. Nicholas, Springer et al. v. Kleinsorge, 83 Mo. 152" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/springer-v-kleinsorge-8008012?utm_source=webapp" opinion_id="8008012">83 Mo. 152.
2. If this action is maintainable at all, it is upon the ground of novation. If there was a novation Canole was absolutely discharged from his debt to plaintiff, and the defendant became the debtor of the plaintiff. In short, a novation is a substitution. Such arrangement is not within the statute of frauds, because by the substitutionary arrangement the promisor but' pays off his own debt. 1 Par. on Cont. 244-249 (old ed.), pp. 217-222 (7th Ed.) But it is of the essence of a novation that all three of the parties should assent thereto. Vanderline v. Brooks, ante, p. 55. Without such concurrence it could make no difference that plaintiff surrendered his note to Canole, for “still it is not a novation.” 1 Par. on Cont. 221 (7th Ed). “All of the authorities, both English and American, • concur in holding that the third person in the novation contract should be *384indebted to the first, and that all of three parties should concur in- the agreement.” Murphy v. Hanraham, 50 Wis. 489. Such promise, to bind the new party, must, of course, be absolute, or, if on condition, such condition must be performed before the action will lie on the promise. There is one fact, without dispute, in this record, and that is, Porter never did promise to pay plaintiff the debt of Canole, except on condition that plaintiff would obtain from Canole an order on defendant. Now it does not appear from plaintiff ’ s evidence that Canole was present when the first interview took place between plaintiff and defendant. Canole was not present, and not consenting to the proposed arrangement, no novation then took effect. The law is well settled, I take it, that notwithstanding the defendant, when he first agreed with plaintiff to accept the order, knew nothing of any defect in the wheat and supposed he owed Canole all he demanded, yet until Canole gave the order, assenting to the arrangement, the defendant, or the plaintiff, was at liberty to rescind or retract, or otherwise modify the proposition. Trimble v. Strother, 25 Ohio St. 378 ; Durham v. Bischoff et al., 47 Ind. 211" court="Ind." date_filed="1874-05-15" href="https://app.midpage.ai/document/durham-v-bischof-7040188?utm_source=webapp" opinion_id="7040188">47 Ind. 211. When plaintiff did bring Canole to defendant’s office, and that seems to have been before the order was presented, the defendant, so a part of the evidence, at least, if not all, shows, distinctly informed the parties that he would not accept an order from Canole except on the understanding that the matter in controversy touching the amount owing by defendant on the wheat, was considered settled. The evidence tends to show that Canole did not accede thereto. If such be true, defendant’s promise was only conditional, and that condition being neither accepted nor performed, how can plaintiff recover %
In Edgell v. Tucker (40 Mo. 523" court="Mo." date_filed="1867-03-15" href="https://app.midpage.ai/document/edgell-v-tucker-8002223?utm_source=webapp" opinion_id="8002223">40 Mo. 523), the court very clearly recognize the law to be that the promise must either be absolute, or, if conditional, the condition must be-performed, or the obstacle removed, before the novation is operative and binding.
3. Counsel suggest that as the trial was had before the court sitting as a jury, the presumption must be in*385dxilged that the court simply decided the case upon the weight of the evidence and the credibility of the witnesses, as instructions to the court, sitting as a jury, perform no such office as in trials before the country. The instructions given and refused by the court, indicate, however, the theory of the law on which the court tried the case. In no other way, under the code, can errors of the law of the trial judge be reviewed than by asking declarations of law. Cunningham, et al. v. Snow, Sup. Crt. of Mo., not yet reported. It is apparent (especially from the refusal to give the third instruction asked by defendant), that the learned judge who tried this case failed to recognize the distinction made in this opinion as to the essential qualities of a novation.
The judgment of the circuit court must be reversed, and the cause remanded for further proceeding in conformity herewith.
All concur.