Staples v. Davis ( 1909 )

The plaintiffs claim that there was a novation, in consequence of which the defendant was substituted for Rossell under the contract of sale and became their debtor for the price of the coal. If it is assumed that the defendant, upon the delivery of the coal to him, offered to become solely liable therefor, and that the plaintiffs when they received the offer so understood it, the question remains whether their letter to Rossell amounted to an acceptance of the offer and the discharge of Rossell. In Woodward v. Miles, 24 N.H. 289, 294, it is said: "The party who alleges such agreement for the discharge of the old debt is bound to prove a distinct agreement to that effect." Cutting v. Whittemore, 72 N.H. 107.

If the plaintiffs intended by their letter to cancel their demand against Rossell and to look to the defendant alone for their pay, the language they used furnishes little evidence of it. In fact, they declined to charge the account to the defendant on their books. They preferred that the contract with Rossell should remain unaffected by the sale from him to the defendant. Their principal desire was that Rossell should pay them, and for that reason they suggested to him that he collect the money the defendant was owing him and send it to them in satisfaction of their claim against him. This is a more reasonable construction of their language than it is to infer that they discharged Rossell as their debtor and then constituted him their agent to collect the debt of the defendant as a substituted debtor. No reason is suggested why they desired such substitution, or why, if they did, they used language that seems to conceal that purpose. Nor are there any competent facts reported that make such a construction of their letter probable as an expression of their intention. There is no sufficient evidence of a novation.

Exception overruled: judgment on the verdict.

All concurred.