Welch v. Kenny (1874) · DecisionDepot

Welch v. Kenny

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1874 No. No. 4,177Published

Before: McKinstry

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Holding. The court held that the agreement between the parties, combined with the release of a third party, constituted a novation rather than a promise to answer for the debt of another, thereby exempting it from the Statute of Frauds.

Issues

Whether the contract constituted a novation rather than a promise to answer for the debt of another.
Whether the contract was required to be in writing under the Statute of Frauds.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The contract between the plaintiff and defendant, followed by the release of the Reddy Brothers, constituted a “novation;” and it was not, on the part of defendant, a mere promise to answer for the “debt, default or miscarriage of another,””

Synopsis

Novation of Debt.—If A. sells property to B., for which B. is to pay him a price agreed on, and B. then sells the property to 0., who agrees verbally to pay A. whatB. owes him, and A., in consideration thereof, releases B., the transaction is not a promise of C. to pay B.’s debt to A. but a novation, and C.’s promise is not required to be in writing.

By the Court, McKinstry, J.: The contract between the plaintiff and defendant, followed by the release of the Reddy Brothers, constituted a “novation;” and it was not, on the part of defendant, a mere promise to answer for the “debt, default or miscarriage of another,” nor required to be in writing by the Statute of Frauds. (Civil Code, 1530.)

Judgment and order denying new trial affirmed, with ten per cent, damages. Remittitur forthwith.

Mr. Justice Rhodes did not express an opinion.

Welch v. Kenny

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