Lynch v. Austin

51 Wis. 287 | Wis. | 1881

Lyoit, J.

The evidence is all directed to the issue of novation made by the answer. Independently of the evidence on that issue, there is none tending to prove payment of the plaintiff’s demand. Unless, therefore, a valid novation was established, the plaintiff should have recovered. The defendant Austin testified to the novation as follows: “ Kerns and Bruley agreed to pay the claim, and lynch agreed to take them for payment, and I credited Kerns and Bruley with the amount of $70.” The defendant Montgomery testified that the plaintiff said to him that he (the plaintiff) could get his money out of the committee, and again, that he would take the committee for his claim. On the other hand, Kerns and Bruley testified that they never agreed to pay the plaintiff, and they deny that in their settlement the defendants allowed them the amount of plaintiff’s demand. The plaintiff denies that he ever released the defendants from payment of his demand. The issue being whether there was a valid novation, and the testimony being directly in conflict, it became important that the law of novation should be correctly given to the jury. The court instructed the jury, in substance, that if the defendants, by the direction of plaintiff, credited the $70 to Kerns and Bruley or the church committee, it was a payment thereof,' and the plaintiff could not recover; and that it was not important whether the plaintiff could recover the amount of Kerns and Bruley or not. We think these instructions are erroneous. Novation means simply the substitution of one debtor for another; and unless the arrangement between the parties went to the extent of binding Kerns and Bruley, or the church committee which they represented, to pay the debt of the defendants, it was not a good novation and the defendants are not discharged. This is elementary. Of course, if a creditor direct his debtor to pay the debt to a third person, and he does so, the debt is thereby discharged. But this is not such a case. All the evidence tending to show that the plaintiff directed the defendants to give Kerns and Bruley, or the church committee, credit for the $70, shows that such direction was inseparably connected with the alleged novation — was, indeed, part and parcel of it. No independent direction to that effect is testified to. Bailing the novation, therefore, the alleged direction ceases to be significant.

Under the pleadings and evidence, we think that the vital controverted question of fact in the case is, whether, by mutual agreement between all parties, Kerns and Bruley, or the committee, were substituted for the defendants, as debtors to the plaintiff, in respect to the demand upon which this action was brought. That question was not submitted to the jury, but they were told that it was immaterial. Bor this error the judgment of the circuit court must be reversed, and the cause remanded for a new trial.

By the Court. — So ordered.