Tomberlin v. Long , 250 N.C. 640 ( 1959 )

109 S.E.2d 365 (1959) 250 N.C. 640

J. V. TOMBERLIN
v.
R. W. LONG, Trading and Doing Business as Long Construction Co.

No. 163.

Supreme Court of North Carolina.

July 2, 1959.

Addison Hewlett, Jr., Wilmington, Napoleon B. Barefoot, for plaintiff appellee.

Weeks & Muse, Iarboro, for defendant appellant.

WINBORNE, Chief Justice.

The pivotal question on this appeal revolves around assignment of error No. 8 based upon exception No. 20 taken to the action of the trial court in sustaining motion of plaintiff for nonsuit of defendant's cross-action or counterclaim on the ground that it is based on an alleged breach of an oral contract which was substituted by the written lease agreement which, as expressed by counsel for plaintiff, brings in the principle of novation.

In this connection "``Novation' may be defined as a substitution of a new contract or obligation for an old one which is thereby extinguished * * *. The essential requisites of a novation are a previous valid obligation, the agreement of all the parties to the new contract, the extinguishment of the old contract, and the validity of the new contract * * *." 66 C.J.S. Novation §§ 1 and 3.

"Novation implies the extinguishment of one obligation by the substitution of another." Walters v. Rogers, 198 N.C. 210, 151 S.E. 188, 189. Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245; Commercial Nat. Bank of Charlotte v. Charlotte Supply Co., 226 N.C. 416, 38 S.E.2d 503.

"Ordinarily," as stated in Growers Exchange v. Hartman, 220 N.C. 30, 16 S.E.2d 398, in opinion by Devin, J., later C. J., "in order to constitute a novation the transaction must have been so intended by the parties."

Indeed this headnote in Commercial Nat. Bank of Charlotte v. Charlotte Supply Co., supra, that "Where the question of whether a second contract dealing with the same subject matter rescinds or abrogates a prior contract between the parties depends solely upon the legal effect of the latter instrument, the question is one of law for the court" epitomizes the holding of this Court.

Now applying these principles to the factual situation in instant case, all the facts and circumstances are not uncontroverted. For instance, while plaintiff alleges in paragraph Twelve of his complaint that "defendant, on May 31, 1957, decided to lease equipment of plaintiff in lieu of giving plaintiff a written contract" this allegation is categorically denied in the answer of defendant. And while there may be other evidence bearing on the question of intent, it appears that a case for the jury is presented. Hence in the ruling made, apparently as a matter of law, the trial court erred in material aspect for which there must be a new trial.

Other assignments of error have been duly considered, and in them prejudicial error is not made to appear. Indeed the matters to which they refer may not recur on another trial. Hence for error pointed out, there will be a

New trial.