Hoffman v. Moreman & Webb

SOMERVILLE, J. — If the oral agreement, under which plaintiffs agreed to receive hack from defendant the 30 tons of meal which had become defendant’s property by delivery to him under-the written contract, was intended as a novation in discharge of the obligations growing out of the written contract, then this was a sufficient consideration for the new oral agreement, for the breach of which plaintiffs declare in the third count of the complaint. — Underwood v. Lovelace, 61 Ala. 155; 29 Cyc. 1133, D. On the other hand, if it was not intended as a novation, then there is no apparent consideration for defendant’s surrender of the 30 tons of meal and agreement to pay to plaintiff the difference in value as specified. The averments of the count in question do not unequivocally show that the oral agreemnt was a novation discharging defendant from his existing obligation to deliver to plaintiffs the 33 tons of cotton seed; for such a novation should be distinctly averred, or else it should be a conclusion of law from the facts shown. We think the third count is subject to the third and fourth grounds of the demurrer, which should have been sustained by the trial court. The other grounds of demurrer are without merit. Defendant’s second plea sets up fraud on the part of plaintiffs in the procurement of the antecedent written contract, but denies that defendant made the subsequent oral agreement counted upon. It is therefore no more than a plea of the general issue, and its elimination cannot be regarded as prejudicial error. The judgment will be reversed, and the cause remanded. Reversed and remanded. McClellan, Mayfield and Sayke, JJ., concur.