Elkins v. Henry Vogt Machine Co.

187 S.W. 663, 125 Ark. 6, 1916 Ark. LEXIS 99

Opinion

Kirby, J.,

(after stating the facts.) The answer sufficiently alleged a defense to the suit, but the burden of proof was upon the defendants, appellants, to establish the truth thereof.

“Novation is the substitution by mutual agreement of one debtor, or of one creditor for another whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished,” * * * * 29 Cyc. 1130.

“It is not essential that the assent to and acceptance of the terms of the novation be shown by express words to that effect, but the same may be implied from the facts and circumstances attending the transaction, and in the conduct of the parties thereafter. Such consent is not to be implied merely from the performance of the contract by the substitute, for that might well consist with the continued liability of the original party, the substitute acting for that purpose in the capacity of agent for the original obligor.” * * * * 29 Cyc. 1132-1133. Logan v. Williamson, 3 Ark. 220; Brewer & Son v. Winston, 46 Ark. 166; see also Union Cent. Life Ins. Co. v. Boyer, (O.) 64 N. E. 435; Walker v. Wood (Ill.) 48 N. E. 919; DeWitt v. Monjo, 61 N. Y. Supp. 1046.

They had the right to introduce testimony in support of the allegations of their answer and any correspondence, transactions, conduct or admissions of appellee company or its authorized agent tending to prove it and also the deposition of its said secretary taken in the case by appellee, its attorneys having consented thereto, and the court erred in the exclusion of such testimony from the jury. It was substantial testimony which would have supported a verdict in favor of appellee under proper instructions, had the jury seen fit to give it credit and the court erred in its rulings excluding the testimony and in directing the verdict. Williams v. St. L. S. F. Ry. Co., 103 Ark. 401; Brigham v. Dardanelle, etc., Ry. Co., 104 Ark. 267.

The judgment is therefore reversed and the cause remanded for a new trial.