Rietzloff v. Glover

91 Wis. 65 | Wis. | 1895

NewmaN, J.

Glover could not be bound by his oral promise to pay the debt of Sweet to the respondent (R. S. sec. 2307; Willard v. Bosshard, 68 Wis. 454) unless the whole transaction amounted to a novation. Novation, as applied to this case, means simply the substitution of a new debtor in the place of an old one, with intent to release the old one. This transaction did not amount to a novation for two reasons: (1) Sweet’s debt to respondent was not extinguished, so there was no substitution of debtors in fact (Guiehard v. Brande, 57 Wis. 534; 16 Am. & Eng. Ency. of Law, 864, and cases cited in note 3; Id. 865, and cases cited in note 1) and (2) Glover was not a debtor to Sweet, and was incapable of being substituted (Gaston v. Owen, 43 Wis. 103). Glover was not a debtor to Sweet. His undertaking to advance money to Sweet did not create the relation of debtor and creditor between them. In this connection the word “debt ” imports a sum of money arising upon contract, and not a mere claim for damages. Zinn v. Ritterman, 2 Abb. Pr. (H. S.), 262. Eor a breach of Glover's undertaking to him, Sweet would have a remedy by action for his damages occasioned by the breach, or, possibly, for a specific performance of the undertaking, but not as for the recovery of a debt. So no valid obligation was created by th% oral promise. „ Uor can the action be maintained on the theory of an undertaking for the respondent’s benefit. His benefit, was not the object of the undertaking. Whatever benefit: he might derive from it is merely incidental and indirect. The undertaking was not to pay Sweet’s debts or his hired men. It was to advance money to Sweet to enable him to carry on the farm. It was not intended to make Glover a guarantor of Sweet’s use of the money advanced, or that he would use it to pay the men. Glover's undertaking to Sweet could be fully satisfied, and the men might still remain unpaid. It is entirely unlike any of the contracts upon which a recovery by third parties has been upheld by this court.. 16 Am. & Eng. Ency. of Law, 888, and cases cited in note 2.

By the Oowrt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.