Jacobs v. Maloney

Smith, P. J. This is a suit on a promissory note, which originated before a justice of the peace. The case, briefly stated, is about this: One H. Jacobs departed this life seized and possessed of considerable property, both real and personal, among which were three promissory notes, executed to him by the defendants; and he also left surviving him several children, of whom the plaintiff is one. The plaintiff, after the death of his father, took possession of the said notes and presented them to defendants for payment. The latter, supposing the former to be the rightful holder' thereof, executed a new note payable to him, who thereupon surrendered the three old notes to the latter. Neither the plaintiff nor anyone else, at the time of the transaction just stated, had been appointed or qualified as administrator of the estate of said deceased, nor does it appear that the probate court had made an order as provided in section 2, Revised Statutes, authorizing plaintiff to collect, sue for, and retain all the property belonging to the estate of his father, or that he was more than an unauthorized intermeddler with the assets belonging to that estate. Upon this state of facts, the plaintiff had judgment in the court below and from which defendants have appealed. It is clear that, on the undisputed facts of the case, as we have stated them to be, on the death of thé plaintiff’s father the title to the three notes owing him by defendants passed to and vested in his representative and not in plaintiff. The plaintiff could acquire no title, except through administration. Becraft v. Lewis, 41 Mo. App. 546; McMillan v. Wacker, 57 Mo. App. 220; Adey v. Adey, 58 Mo. App. 408; Griswold v. Mattix, 21 Mo. App. 262; Smith v. Denny, 37 Mo. 20. The surrender by plaintiff of the notes to defendants, and the execution by them of anew note to plain [273] tiff, did not extinguish the defendant’s obligation on the old notes. The rule is elemental that the substitution of a new contract in place of an old one requires the assent of all the parties to the old contract and of all the parties to the new. Unless all the parties to the old contract consent, it can not be rescinded. 2 Wharton, Contr., sec. 855; Lee v. Porter, 18 Mo. App. 377. The payee in the three old notes was dead, and as there was no representative of his estate, there was no one capable in law of assenting to the substitution of the new note in the place of the old ones. The new note given by defendant, in place of the three old ones, was, therefore, wholly without consideration. The peremptory instruction asked by defendant should have been given. The judgment is manifestly for the wrong party and must be reversed. All concur.