Toogood v. Mack

VALENTINE, J.,

pro

tem.

This was an action for rescission of contract and for money had and received. The court granted a nonsuit as to both defendants. In appellants’ reply brief counsel state that appellants are willing that the judgment of the court below as to the respondent Mary Elizabeth Hedges as executrix of the estate of Abraham Dayton Hedges, deceased, be affirmed.

This leaves for consideration only the pending appeal against defendant and respondent Frank Mack, and -the sole question on that appeal is whether or not there was a novation effected by the assignment of the agreement which provided for the delivery of certain shares of stock by Mack to Hedges. Appellants state that respondent’s contention as to novation goes to the heart of the question, and “if there was a novation then appellants have no cause against respondent.” And further state: “We agree that if there is a novation then the obligations of Mack are dead beyond recall, but we contend there was- no novation.”

The assignment to Hedges, his acceptance, and an acceptance by appellants, are as follows:

“October 11, 1921.

“I hereby transfer and assign all my interest in the foregoing contract for a valuable consideration, to A. D. Hedges of Long Beach, California.

“Fbank Mack. (Seal) ”

“October 11, 1921.

“I hereby accept the assignment--of the foregoing contract from Frank Mack to me, and I hereby agree to carry out its terms.

“A. D. Hedges. (Seal) ”

[675]

“October 11, 1921.

“We, the undersigned, hereby agree to and do accept the assignment of the foregoing contract by Frank Mack to A. D. Hedges, and we hereby agree that the said A. D. Hedges shall be substituted for said Frank Mack in carrying out the terms of said contract.

“Lyman D. Toogood. (Seal)