Caswell v. Fellows , 110 Mass. 52 ( 1872 )

Colt, J.

From the course of the trial and the evidence reported in this case, it is evident that the only controversy before the jury related to the terms of the alleged agreement of substitution made when the parties were together ; the defendant contending that the promise of Millard to pay was then accepted in satisfaction of the plaintiff’s judgment against him, and the plaintiffs claiming that it was to be satisfied only by Millard’s future payment of the money. In other words, the dispute was whether there was, with the plaintiffs’ assent, a substitution thus made of Millard’s debt to the defendant for the defendant’s liability on the judgment.

The instructions which were given to the jury were subject to some criticism at the argument, but, as explained by the state of the evidence and the undisputed facts, we think them, in the absence of any request for specific instructions, sufficiently favorable to the plaintiffs. The jury were told in substance that the plaintiffs’ acceptance of Millard’s promise in substitution for the defendant’s liability to them, which promise was made in consideration of his debt to the defendant, or for other considerations named, would amount to an extinguishment of the plaintiffs’ judgment, and support the defence of payment; to which it was added that a naked promise by Millard, not carried into effect by payment, with no discharge from the plaintiffs of the defendant’s debt, or a mere request from the defendant to Millard to pay this debt out of money due him, to which Millard assented, would not operate as a discharge of the defendant’s liability to the plaintiffs. The jury could not have been misled by these instructions, and must have found that by the agreement of all the parties Millard was discharged from his liability to his original creditor, the defendant, by contracting a new debt in favor of the plaintiffs, whose original claim against the defendant was to be extinguished by the substitution, or, as it is more commonly called in the civil law, by the novation agreed upon. The law gives effect to such a transaction, and enforces the unwritten agreement of the parties, which has sufficient consideration to support it in the extinguishment of the original liability. Wood v. Corcoran, 1 Allen, 405. Furbish v. Goodnow, 98 Mass. 296. Pickens v. Hathaway, 100 Mass. 247. 1 Parsons on Con. c. 13, and cases cited.

Upon the whole, we are not satisfied that the verdict in this case should be disturbed. Exceptions overruled.