McPIKE DRUG CO. v. WILLIAMS

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McPIKE DRUG CO. v. WILLIAMS
1924 OK 1062
230 P. 904
104 Okla. 244
Case Number: 11772
Decided: 11/25/1924
Supreme Court of Oklahoma

McPIKE DRUG CO.
v.
WILLIAMS et al.

Syllabus

¶0 1. Novation--Pleading--Necessity.
A novation is in the nature of a release or discharge and is new matter which must be specially pleaded.
2. Same--Evidence Erroneous in Absence of Pleading.
It is error to permit the introduction of evidence tending to establish novation over objection, in the absence of such pleading.

Robson & Bayless, for plaintiff in error.
F. E. Riddle and Joe Chambers, for defendants in error.

LYONS, C.

¶1 Plaintiff sued defendants to recover a balance due on account. Defendants admitted the correctness of the account, but pleaded payment. At the trial the defendants offered evidence tending to establish the following state of facts, to wit: A sale of the property (which consisted of a drug store stock) upon the condition that all of the creditors would accept 50 per cent. of the amount of their accounts from the purchaser as payment in full. The specific plea of novation does not appear in the answer. The affirmative defense pleaded as new matter was payment. The rule is that a novation is in the nature of a release or discharge, and is new matter which must be specially pleaded. Temple et al. v. Teller Lumber Co. (Colo.) 106 P. 8. In Martin v. Leeper, 48 Okla. 219, 149 P. 1140, the syllabus is as follows:

"The requisites of a novation are a previous valid obligation, an agreement of all the parties to a new contract, the extinguishment of the old obligation, and the validity of the new one." See, also, Gaar, Scott & Co. v. Rogers, 46 Okla. 67, 148 P. 161.

¶2 The case of Continental Gin Co. v. Arnold, 52 Okla. 569, 153 P. 160, lays down the rule as follows:

"The term 'payment' in its legal import, means the satisfaction of a debt, by money or the representative of money, and not by novation, compromise, or accord and satisfaction.

"An 'accord and satisfaction' is an executed agreement whereby one of the parties undertakes to give, and the other to accept, in satisfaction of a claim arising either from contract or tort, something other or different from what he is, or considers himself, entitled to.

"Accord and satisfaction and other transactions closely allied thereto, such as a compromise agreement, executory accord, and novation, in order to be available as a defense, must be specifically pleaded."