Bonner v. Woodall

Warner, Chief Justice. The plaintiff brought his action against the defendants on a promissory note for the sum of $2,610 37, payable to the plaintiff, as guardian of Harry Horsy, dated 14th February, 1863, and due 1st day of January, 1864. On the trial of the case, the jury, under the charge of the court, found a verdict against Woodall for the sum of $560 00, with interest thereon, and the sum of. $146 65, with interest thereon, against Nelson, the security. The evidence in the record substantially discloses the following facts in relation to the consideration of the note sued on : That before the war in 1860, the defendant, Woodall, borrowed of the plaintiff, as guardian, $2,000 00, in current bank notes issued by the banks of this state, and gave him his note therefor, with Reynolds and Nelson as his securities, that the note sued on was given in renewal of that note, including the interest due thereon, that when the note was renewed Reynolds’ name was left out at his request and by plaintiff’s consent, he being willing to take Nelson alone as security. The plaintiff wrote the note, gave it to Woodall to sign and to procure the signature of Nelson, which was done, the plaintiff not being present. Nelson knew at the time he signed the last note, as security for Woodall, that it was given in renewal of the first note. There was nothing said at the time as to the kind of currency in which the note should be paid, though Nelson stated in his evidence. that he expected, if he had the money to pay, to pay it in Confederate money. The court charged the jury, in substance, that the renewal of the old note, by leaving out Reynolds, under the facts of the case as stated in the evidence, was a novation of the original contract, and would authorize them to scale the note sued on under the ordinance of 1865, to which charge of the court the plaintiff excepted. The original contract between the parties was to pay the plaintiff the $2,000 00 borrowed of him. The renewed contract was to pay him the same amount, with the lawful interest due thereon, for the same consideration, and there is no pretence that [180] there was any other consideration for the renewed note, or that Nelson did not know, at the time he signed the renewed note as security for Woodall, that Reynolds’ name was to be left off of it with the plaintiff’s consent. One simple contract as to the same matter and on no new consideration, does not destroy another contract between the same parties, but if new parties are introduced by novation so as to change the person to whom the obligation is due, the original contract is at an end: Code, 2724. In this case there was ho -new consideration for the renewed note, and no change of the person to whom the obligation was due, and if Nelson signed the renewed note as security for Woodall, with full knowledge ‘that Reynolds’ name was to be left off of it, then no new parties have been introduced or omitted from the contract of which he has any right to complain. There was no novation of the original contract, in the legal sense of that term, either as to Woodall or Nelson, but a simple renewal of the original contract, and for the same consideration. The note sued on, being simply a renewal of a contract made prior to the 1st of June, 1861, was not subject to be scaled under the provisions of the ordinance of 1865. The consideration of the note was not Confederate money, but bank bills, the purchasing power of which was nearly equal to that bf specie at the time it was borrowed of the plaintiff, as the property of his ward, and therefore is not of that class of contracts contemplated by the ordinance of 1865. In our judgment the court erred in its charge to the jury, as set forth in the record. Let the judgment of the court below be reversed.