Peters v. Kanzenbach

The following opinion was filed November 15, 1921: Doerfler, J. In the first place, the plaintiff was not authorized to execute and deliver to the defendant a release such as is referred to above. The defendant was not indebted to the plaintiff, but was indebted to Weir. Weir had not consented to the acceptance by the plaintiff of the note executed by the defendant. Consequently it follows that the release delivered to the defendant was not a binding or valid release, as appears from the evidence, and as a result the note executed to the plaintiff was not executed pursuant to a valid consideration moving from the plaintiff to the defendant. Furthermore, there being no evidence showing that Weir consented to or approved of the arrangement made between the plaintiff and the defendant, Weir still retained his claim against the defendant. The arrangement entered into between the plaintiff and the defendant did not constitute a novation, for in order to constitute a novation a creditor must have consented to the discharge of the original debtor and have accepted the promise of the new debtor. 29 Cyc. 1132. So that, inasmuch as it appears from the evidence that Weir did not consent to the discharge of defendant (he being the original debtor), and there being no evidence of his acceptance to treat the plaintiff as his debtor, a novation did not result and Weir still retained his original claim against the defendant. It is argued by plaintiff’s counsel that the action was brought by the plaintiff as trustee of an express trust, and that in such an action, under the provisions of sec. 2607, Stats., it was not necessary for the plaintiff to join Weir with him as a party plaintiff, and that the action could properly be prosecuted in plaintiff’s name alone. In order that the plaintiff could bring this action properly in his own name but as trustee of an express trust, it was necessary that Weir either expressly or'impliedly consented [605] to the bringing of such action in that form, and a situation must also appear whereby the judgment obtained would bind Weir and release Weir’s claim against the defendant. There is nothing in the evidence whibh would warrant such a conclusion. In the case of Salter v. Krueger, 65 Wis. 217, 26 N. W. 544, cited in appellant’s brief, it appeared that the note and mortgage were given for the aggregate amount of a debt due from one Emery to the defendant, and another debt due from Emery to Ott. Both were taken in the name of the defendant alone. Ott was not mentioned nor referred to in either. He was present, however, and participated in their procurement, but otherwise was not a party to the transaction. The court. in that case, as reported in the opinion on page 221, says-. “Evidently Ott constituted the defendant his trustee of an express trust. Sec. 2607, R. S. Assuming the rightful execution of the note and mortgage, then they were both enforceable in the name of the defendant alone without making Ott a partv.” Citing Waterman v. C., M. & St. P. R. Co. 61 Wis. 464, 21 N. W. 611; Poor v. Guilford, 6 Seld. (10 N. Y.) 273, 61 Am. Dec. 749; Johnson v. Catlin, 27 Vt. 87, 62 Am. Dec. 622. In the case at bar Weir was not present when the arrangement between the parties to this action was enterecj into, nor did he consent to the same. It follows, therefore, that Weir, not having released the defendant as his .debtor, and not having consented to the delivery of the receipt to the defendant and the acceptance by the plaintiff of the note in question, still retained his claim against the defendant. The motion for direction of a verdict was therefore properly granted. By the Court. — Judgment affirmed.