Money v. Dameron

MARTIN, Justice.

Caroline McCord, filed suit on certain vendors’ lien notes and for foreclosure of lien against L. H. Shore, Travis M. Dameron, Billie K. Money, and Elsie Money. The controversy here is between Dameron and Elsie Money only. Judgment was sought against Dameron and he in turn filed a cross-action against Elsie Money. That part of his cause of action against her deemed material here was pleaded in the following language:

“On or about the 15th day of February, 1931, this defendant entered into a written contract of sale and exchange with Mrs. Elsie Money whereby he bargained and sold to Mrs. Elsie Money the west half of section 37, block I-C — 14 of Deaf Smith County, Texas, and that as part of the consideration the defendant, Mrs. Elsie Money, assumed and agreed to pay the last seven of the eight $200.00 notes hereinbefore described as well as the last four of the $220.00 notes aforesaid and the 1931 taxes on the land. That by reason of the said contract and assumption of the notes the defendant Mrs. Elsie Money, became personally liable on said notes so assumed, and owes" this defendant the duty to protect and save him harmless from the payment of said notes or any part thereof.

“That thereafter, to-wit: on or about the 27th day of April, 1931, this defendant, Travis M. Dameron, by deed of that date recorded in book 67, page 320 of the deed records of Deaf Smith County, Texas, did convey at the instance and request of the said Mrs. Elsie Money, the west half of section 37, Block K — 14 of Deaf Smith County, Texas, to the defendant Billie K. Money ; and that the said Billie K. Money, in consideration therefor, assumed and agreed to pay, which assumption was recited in the deed, the last seven of the eight $200.00 notes above described, and the last four of the five $220.00 notes above set forth, with accrued interest thereon, and by reason of said assumption, the defendant Billie K. Money is personally liable for the payment of the notes sued on, and owes this defendant the duty to protect and save him harmless from the payment of said notes or any part thereof.”

To this she answered only hy a general demurrer and general denial. She was cast in the action and claims here that her defense of novation was ignored by the trial court, that the evidence showed, and at least raised an issue, that she had been released by appellee from her original agreement to pay the notes in controversy, and the obligation and assumption of the notes by Billie K. Money accepted in lieu of her obligation to pay same.' The court refused to submit any issue to the jury concerning novation.

We do not pass on whether such issue was raised by the evidence, since the defense of novation was not specially pleaded by appellant, and any judgment rendered on a finding of the existence of such a defense would have been without pleadings to support it It has been pointedly held in Texas that evidence of such a defense is not admissible under a general denial. Prutzman v. Winter (Tex. Civ. App.) 280 S. W, 266. It is an affirmative defense in the nature of a release or discharge and -is new matter which must be specially pleaded. 46 C. J. 624; Hix v. Tomlinson (Tex. Civ. App.) 200 S. W. 897; John Wanamaker New York v. Comfort (C. C. A.) 53 F.(2d) 754. It must clearly appear and will not be presumed. Hix v: Tomlinson, supra.

“The reason for the rule is obvious. ‘No-vation is made by contract, and is subject to all the rules concerning contracts in general.’ ⅜ ' * * A novation must be supported by a consideration. ⅜ * * When a novation is pleaded, the adversary is given an opportunity to resist-it on the ground of want of consideration, fraud, and the like. Unless it is pleaded, fair opportunity to resist the contention is not afforded.” Bose v. Sullivan, 87 Mont. 476, 288 P. 614, 616.

Nor do we think the appellee himself alleged the defense in such way as to relieve the appellant of the necessity of so doing. His pleadings ‘show primary liability against appellant on the notes. The fact that ho alleged the title to the land was taken in the name of another would not sufficiently allege a new contract either express or implied between the parties, particularly an intention to extinguish her original obligation and accept another’s in lieu thereof.

The failure of. the court to notice appellant’s alleged defense of novation is the only question presented.

The judgment is affirmed.