Trabucco v. Collins

WASTE, P. J.

This is an appeal from a judgment in favor of plaintiff. Defendant Elizabeth Collins alone appeals. Her first contention is that plaintiff’s own case proved a “novation,” by which his claim against her was extinguished ; to wit, the creation of an obligation.on a promissory note, signed by defendant If. J. Collins alone, in place of an obligation of both defendants to repay money loaned by plaintiff. She relies upon the two documents introduced in evidence by plaintiff, the first being a receipt for $476 in favor of plaintiff, signed by both defendants; the second dated later, being a promissory note in favor of plaintiff for the amount sued for, signed by defendant M. J. Collins only.

The defense of novation was not pleaded in the original answer, which denied the loan, and all, or any, indebtedness. Neither was it pleaded in the answer as amended at the conclusion of the trial, and which alleged, as a further and separate defense, that the money was paid by plaintiff in accordance with an agreement for the purchase of a one-half interest in the marble business conducted by the defendants. The finding of the court was squarely against both defendants on each of the defenses.

It is clear from the whole case that defendants did not rely upon a novation, but upon the alleged agreement set out in their answer. This, no doubt, is the reason they did not plead it. Novation “is held to be new matter of defense or discharge, which must be specially pleaded.”

(McGinn

v.

Wiley,

24 Cal. App. 312, [141 Pac. 53], and cases therein cited.) Furthermore, the evidence in the case, if considered in the light of such defense, would not support an allegation, or finding, that novation had resulted. Appellant, by her own acts, prevented the full consummation of any intent on the part of the parties, if any such existed, to extinguish the

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old obligation.. She refused to sign the note on which she relies for novation, although plaintiff many times endeavored to have her do so, and he never by any act or word released her from her liability in the premises.