CHAPTER V. NOVATION. SECTION 1530. Novation, what. 1530. 1531. Modes of novation.. 1532. Novation a contract. 1533. Rescission of novation. Novation is the substitution of a new obli- Novation, gation for an existing one. what. novation. 1. By the substitution of a new obligation between Modes of the same parties, with intent to extinguish the old obligation; 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or, 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. NOTE.-Subd. 2.-Conkling vs. King, 10 N. Y., p. 440; Graves vs. Friend, 5 Sandf., p. 568; St. John vs. Purdy, 1 id., p. 9; N. Y. State Bank vs. Fletcher, 5 Wend., p. 85; Sard vs. Rhodes, 1 M. & W., p. 153. But if there is no agreement to accept the new obligation in satisfaction, it is not a satisfaction.-Noel vs. Murray, 13 N. Y., p. 167; Vail vs. Foster, 4 id., p. 312; Monroe vs. Hoff, 5 Den., p. 360. The intent is the material question.-Jobbitt vs. Goundry, 29 Barb., p. 509; Barringer vs. Warden, 12 Cal., p. 311. A purchased land of B, and as a part of the consideration agreed to pay certain debts of B owing to C. Cassigned these debts to D. Neither C nor D were parties to the agreement between A and B, nor did they assent to it. It was held that D could not maintain an action against A, there being no privity between the parties, no novation of the indebtedness, and no assent to the transaction, which might make the agreement an equitable assignment.-McLaren vs. Hutchinson, 18 Cal., p. 80. But this decision was commented on and questioned in Lewis vs. Covillaud, 21 Cal., p. 178; and see, also, in same connection, McLaren vs. Hutchinson, 22 Cal., p. 187; Wiggins vs. McDonald, 18 Cal., p. 126; Gyle vs. Shoenbar, 23 Cal., p. 538. Novation a contract, Roscission of novation 1532. Novation is made by contract, and is subject to all the rules concerning contracts in general. 1533. When the obligation of a third person, or an order upon such person, is accepted in satisfaction, the creditor may rescind such acceptance if the debtor prevents such person from complying with the order, or from fulfilling the obligation; or if, before the creditor can with reasonable diligence reach such person, he becomes insolvent. NOTE. "If the debtor prevents such person from complying with the order."--See Franklin vs. Vanderpool, 1 Hall, p. 78; Coyle vs. Smith, 1 E. D. Smith, p. 400; Purchase vs. Mattison, 6 Duer, p. 587; Jacks vs. Darrin, 3 E. D. Smith, p. 557. "If, before the creditor can with reasonable diligence reach such person, he becomes insolvent."-See Lovett vs. Cornwall, 6 Wend., p. 369, affirming S. C.; 1 Hall, p. 56; Timmins vs. Gibbins, 18 Q. B., p. 722; Ontario Bank vs. Lightbody, 13 Wend., p. 107; see Heubach vs. Mollman, 2 Duer, p. 227; Benedict vs. Field, 16 N. Y., p. 595; but see Des Arts vs. Leggett, id., pp. 582, 589. CHAPTER VI. RELEASE. Obligation extin release. SECTION 1541. Obligation extinguished by relcase. 1542. Certain claims not affected by general release. 1541. An obligation is extinguished by a release guished by there from given to the debtor by the creditor, upon a new consideration, or in writing, with or without new Certain claims not consideration. NOTE. See notes to Sec. 1524. 1542. A general release does not extend to claims affected by which the creditor did not know or suspect to exist in general roloase. his favor at the time of executing the release. NOTE.-Lyall vs. Edwards, 6 H. & N., p. 337. several debtors. 1543. A release of one of two or more joint debt- Release of ors does not extinguish the obligations of any of the joint others, unless they are mere guarantors; nor does it affect their right to contribution from him. NOTE. This provision is new (see Cornell vs. Masten, 35 Barb., p. 157; Bronson vs. Fitzhugh, 1 Hill, p. 185; Hoffman vs. Dunlop, 1 Barb., p. 185; Parsons vs. Hughes, 9 Paige, p. 591; Catskill Bank vs. Messenger, 9 Cow., p. 37; Rowley vs. Stoddard, 7 Johns., p. 207. A release may be so drawn as to discharge one only of several joint debtors. As the intention of the creditor is evident enough from the form of the release, the justice of this provision can hardly be disputed. ᏢᎪᎡᎢ II. CONTRACTS. TITLE I. NATURE OF A CONTRACT. II. MANNER OF CREATING CONTRACTS. IV. UNLAWFUL CONTRACTS. V. EXTINCTION OF CONTRACTS. TITLE I. NATURE OF A CONTRACT. CHAPTER I. Definition. II. Parties. III. Consent. IV. Object. V. Consideration. CHAPTER I. DEFINITION. SECTION 1549. Contract, what. 1550. Essential elements of contract. what. 1549. A contract is an agreement to do or not to Contract, do a certain thing. NOTE.-McNulty vs. Prentice, 25 Barb., p. 204; |