Sullivan v. Marshall , 56 Mont. 568 ( 1919 )

MR. JUSTICE COOPER

delivered the opinion of the court.

This is an action to recover for goods, wares and merchandise sold and delivered to the defendant. On the twenty-ninth [1] day of April, 1916, one E. S. Shields was the owner and in possession of a building in the city of Butte, Silver Bow county, known as the “Butte Tabernacle,” upon which date a contract of sale thereof was entered into between Shields and defendant, and a part of the purchase price paid thereon. The final payment therefor was made by defendant on the first day of May thereafter. Prior to its sale, and while the building was in the possession of its former owner, the plaintiff, at the special instance and request of Shields, performed work and labor, and furnished wiring and other electrical appliances for the installation of a lighting plant therein, of the value of $143.97. Immediately after the making of the final payment on the purchase price, in a conversation at which the plaintiff, the defendant and Shields were all present, it was agreed that the said electrical appliances should remain in said building, and that the defendant would assume the obligation resting upon Shields and pay to plaintiff the reasonable value • of the services and materials, and that Shields should thereupon be released from any further obligation thereon. Upon the trial in the court below, the defendant, in his own behalf, touching the agreement to pay plaintiff for said appliances, testified as follows: “The building was all mine, except the wiring * * * ; and I says, ‘Can’t there be some arrangements made — can’t we arrange with Sullivan to have the wiring left there in the building, and I’ll take charge of that?’ He [Shields] said that vfas all right, and that probably could be arranged all right and satisfactory, and he proposed that we go right up to .Sullivan’s house, or the shop, and settle the thing there; so I went along with him up to Sullivan’s shop there and agreed to take the wire, and told Sullivan I would agree to take the wire, and told Sullivan I would agree to pay for the wire. We agreed to that.”

By subdivision 2 of section 4959 of the Revised Codes, a novation is made “by the substitution of a new debtor in the place of the old one, with intent to release the latter.” This was clearly a novation, — an agreement on the part of defendant to stand in the shoes of the seller [Shields] and to pay plaintiff for the labor and appliances none of the parties deny were performed and furnished as alleged. Upon the showing here made, the defendant cannot escape liability upon an obligation his own testimony clearly shows he assumed.

■The judgment is therefore affirmed.

'Affirmed.

Mr. Chief Justice Brantly and Associate Justices Holloway and Hurly concur.