Adams v. Power

Citations

• 48 Miss. 450

Syllabus

<p>1. Novation. — In. the civil law there are three kinds of novation: 1. Where the debtor and creditor remain the same, but a new debt takes the place of the old one; 2. Where the debt remains the same, but a new debtor is substituted; and, 3. Where the debt and debtor remain, but a new creditor is substituted.</p> <p>2. Same — delegation.—Delegation is where a debtor obtains a release from his creditor by the substitution and acceptance of another who obliges himself to the creditor. Domat, 910, sec. 2318, 2319.</p> <p>3. Same at common law. — Novation at common law is mainly the same as in the civil law. 3 T. K. 180.</p> <p>4. Consideration. — There must always be an old debt extinguished, as a consideration for the new one.</p> <p>5. Same — doctrine illustrated by the case at bar. — P. was indebted to S., who was indebted to C. & C. S. took P.Js note for the amount, having it made payable to C. & C., stating to P, at the time that he desired to hand it to them in settlement of his own debt to them. Held, that when the note was accordingly accepted by C. & C. the several transactions operated upon the principle of novation, as an extinguishment of P.>s debt to S., and of S.Js debt to C. & C. by the substitution of the debt created by the note from P. to C. & C. Held, further, that the new debt from P. to C. & C. was not at all affected by a cotemporaneous collateral covenant between S. & P., and to which C. & C. had not assented; but aliter if they had assented. — Tarbell, J., dissenting.</p> <p>5. Instructions to jury. — An instruction containing only a correct legal proposition held to be erroneous, because inapplicable to the facts.</p> <p>6. Evidence — presumption—contracts.—Where the consideration passes from A. to B., and A. takes B.5s note, payable to C., the transaction must be held to amount to a consent by B. that A. shall deliver it to C.; and if B. is further informed that A.’s motive for taking the note, payable to C., is the extinguishment of a debt