Sec 859

Although, as has been already seen, the position has been disputed by courts in this country of high authority, the better opinion is that no one who is not a party to a contract can sue on it,8 and that no one Only parties to a contract can be sued on a contract who is not a party to it.1 Hence no one, properly speaking, can sue on a novation who is not a party to it.

1 Supra, sec 505, 853. 2 Supra, sec 526 et seq.

3 2 Ch. on Cont. 11th Am. ed. 1379; Bartlie V. Moor, 8 Q. B. 489; Thomas V. Shillibeer, 1 M. & W. 124; Phalan V. Stiles, 11 Vt. 82; Windham V. Doles, 59 Ga. 265; Hixon V. Hetherington, 57 Ala. 165.

4 Infra, sec 996 et seq.

5 Hixon V. Hetherington, 57 Ala. 165.

6 Trimble V. Strother, 25 Oh. St. 378; Durham V. Bischoff, 47 Ind. 211.

7 Ford V. Adams, 2 Barb. 349; see supra, sec 836 et seq.

8 Supra, sec 784 et seq.

Sec 860

The acceptance of a higher security from a new debtor in place of the old debt may of itself operate as a merger of the old debt in the new, unless it is understood that the security was intended only as a collateral.2 This has been held to be the case where a creditor of a partnership accepts a higher security from a partner in satisfaction of a partnership debt.3 A judgment against one partner, at common law, extinguishes the firm debt;4 though in some states it is otherwise by statute. The question, however, is one of intention, and there is no merger unless it was understood by the parties that the new security was in satisfaction of the old debt.5

Sec 861

Unless it is required by statute that a contract solemnized in a particular way can only be altered and reconstructed by the same solemnities, parol proof is admissible to show that a particular contract has, before breach, been set aside and another instituted in its place. Even when particular solemnities are required, we have to go back to parol as the foundation of introductory proof. When such solemnities are not required, the proof of substitution may be by parol throughout.6 It should, however, to produce the effect of vacating a written contract and establishing a substituted unwritten contract, be strong and clear.7

Sec 862

A new firm may, with consent of the creditor, adopt the debt of an old firm, and if there be a sufficient consideration, the old debt may be extinguished.8 may sue or be sued on it.

Extinguishment may be by merger.

Novation may be proved by parol.

Novation applied to partnership.

1 Supra, sec 809 et seq.

2 Supra, sec 684; infra, sec 957, 1040; Hoskinson V. Eliott, 62 Penn. St. 393; Bennet V. Cadwell, 70 Penn. St. 253.

3 Story on Part. 7th ed. sec 155; Clement V. Brush, 3 Johns. Cas. 180; Tom V. Goodrich, 2 Johns. 213; Andrews V. Smith, 9 Wend. 53.

4 Lindley on Part. 4th ed. 451; Kendall V. Hamilton, L. R. 3 Ap. Ca. 403; Mason V. Eldred, 6 Wall. 231; and cases cited Story, Part. sec 155.

5 Infra, sec 957; Bottomley V. Nuttall, 5 C. B. N. S. 122; Waydell V. Lever, 3 Denio, 410; Claflin V. Ostrom, 54 N. Y. 581; Leabo V. Goodes, 67 Mo. 126; Hill V. Voorhies, 22 Penn. St. 60; Potter V. McCoy, 26 Penn. St. 458.

6 See supra, sec 661, 690.

7 See Wh. on EV. sec 1017.

8 Weston V. Barton, 4 Taunt. 673; Simson V. Ingham, 2 B. & C. 72; Hart V. Alexander, 2 M. & W. 484.

- The questions, in cases of alleged novation by acceptance of new partnership debtors, are (1) did the new firm accept the liabilities of the old? and (2) did the creditor, knowing this, consent to the liability of the new firm and discharge the original debtor?1 Unless these points be settled affirmatively, there is no novation.2 By accepting negotiable paper in satisfaction of a debt from one partner, the substitution being intended by the parties, the partnership is discharged.3