Bacon v. Bates

The opinion of the court was delivered by Ross, J. By the order Webster and Willey directed the defendants to pay whatever sum might be found due to them, on settlement, to the plaintiff. The negotiability of this order, if by its terms it was negotiable, was restricted by the fact that it was for an uncertain, rather than a definite sum. It was not, however, for that reason invalid, inasmuch as the sum to be paid thereunder, was capable of being made certain, by computation and settlement. It was in the nature of a draft, by Webster and Willey on the defendants, in favor of the plaintiff, for such a sum as should be thus ascertained to be due from the defendants. It was a valid direction and authorization from Webster and Willey to the defendants to substitute the plaintiff as the payee of such sum, as should be found their due on settlement. By receiving, and presenting the order for acceptance, the plaintiff consented and agreed to be substituted as such payee. By accepting and promising to pay such order to the plaintiff, the defendants agreed to, and accepted the plaintiff, as their payee of such sum as should be found due from them to Webster and Willey, on settlement. Thus the minds of the three parties met, and agreed to the substitution of the plaintiff as the payee, in the place and stead of Webster and Willey, in regard to such indebtedness; and completed and perfected what, in law, is denominated a novation of the party, to whom such indebtedness was due and to be payed. The promise, agreement, and undertaking of each party, was a sufficient consideration for the promise, agreement, and undertaking of every other party to such novation. There is, therefore, no legal objection on the facts set forth in the dec [33] laration, and admitted by the demurrer, to the plaintiff’s right to maintain the action, and recover the sum found due from the defendants on the settlement of their deal with Webster and Willey. If the order by its terms was negotiable, which does not appear, the uncertainty in regard to the sum to be paid thereunder, restricted the negotiability thereof by the plaintiff, but did not affect his right to enforce the same against the defendants. The judgment of the County Court is affirmed.