Thorman v. Polya — 37 N.Y. St. Rep. 257

Majority

p. 257

Philip Thorman, Resp’t, v. Julius Polya, App’lt.

(New York Common Pleas, General Term,

Filed April 6, 1891.)

Headnote

Services—Evidence—Novation. “

Defendant having been engaged to do certain work for one W., sublet, it to plaintiff, who presented bills therefor to W. and took his note. In this action to recover for said work the court excluded all evidence tending to show defendant’s approval and assent to the substitution of W. as. debtor in his place, and that- such arrangement was intended to discharge defendant from further liability. Held, error; that if such arrangement had the assent of all the parties concerned it constituted an accord and satisfaction by novation and would be a good defense to the action.

Appeal from a judgment of the eleventh district court in favor of plaintiff in an action to recover for work, labor and services and materials furnished.

Herman Frank, for resp’t; Wager & Acker, for app’lt.

Polya was engaged in the business of repairing carriages and had been requested to do repairs for Wyman. He sublet the work to Thorman, and the latter, having completed it, brought this action- against Polya to recover the amount alleged to be due him therefor. On the trial plaintiff claimed that the services rendered were performed at the request of the defendant and upon his promise to pay therefor; but on cross-examination plaintiff admitted that he had rendered bills to Wyman charging the work to defendant, and' that upon Wyman’s promissory note for the amount he receipted the bills and so delivered them to him. The bills were introduced in evidence and in hand

p. 258

writing bore an endorsement to the effect that the same were paid by Wyman’s note. Whether or not the defendant had approved of this arrangement between plaintiff and Wyman we cannot determine, because the trial justice persistently ruled out every question by the defense tending to show by cross-examination of the plaintiff and the testimony of the witnesses for the defense that Wyman had been substituted as debtor to plaintiff in the place and stead of the defendant, with the latter’s approval and assent; and that it was thereby intended to discharge the defendant from further liability.

The defense to plaintiff’s cause of action was in effect an accord and satisfaction by novation, that is to say, the substitution of a new debtor in the place of the original debtor, and if such arrangement was assented to by all the parties concerned and it was thereby intended to release and discharge the defendant from the claim in suit, such would be the effect. Lawson’s Eights, Eemedies and Practice, vol. 5, 4236, § 2572. A case closely resembling this was that of Cadens v. Teasdale, 38 Am. Rep., 697 . Oadens having a claim against Teasdale accepted the note of one Oliver in payment, and when at maturity of the note Oliver proved to be insolvent Oadens sought to recover against Teasdale upon the original claim.

Teasdale was held to be discharged. See also Wharton on Contracts, vol. 2, “Novation,” §§ 852, etc. ; W hitbeck v. Van Ness, 11 Johns., 409 ; Boyd v. Hitchcock, 20 id., 76; Booth v. Smith, 3 Wend., 66 ; Frisbie v. Larned, 21 id.,450; Shaw v. Republic Life Ins. Co., 69 N. Y., 286 .

The exclusion of the evidence offered by the defense was error and the judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

Pryor, J., concurs.