party in statu quo, or sufficiently excuse himself from such duty.' Where a new contract is consistent with the continuance of the former one, and only provides a new mode of discharging such former one, it has no effect unless or until it is performed.2

§ 2572. Acceptance of New Debtor- Novation.The contract may be discharged as to the original debtor by the acceptance by the creditor of a new one in his place. This is called a "novation." To entitle the creditor to recover against the substituted debtor, the creditor must have consented to the arrangement, and the old debt must have been extinguished. Novation is never presumed, and must be clearly established by a full discharge of the original debt, the express terms of the agreement, or the acts of the parties. An agreement upon no new consideration between debtor and creditor that the former shall pay the amount of his debt to a third person-a creditor of the latter-is not, in the absence of any notice or acceptance of or assent to the arrangement by such third person, irrevocable by the creditor; nor does such an arrangement create any trust for or interest in such third person as to the debt or fund owing by the debtor as will prevent its being held under attachment against the property of the creditor.

ILLUSTRATIONS.-An agent takes notes payable to himself for goods sold by him. Subsequently new notes for the same debt, but for a longer time, are given to the principal. This is

1 Jarrett v. Morton, 44 Mo. 275; Johnson v. Walker, 25 Ark. 196; Ellington v. King, 49 Ill. 449.

McDaniels v. Robinson, 26 Vt. 316; 62 Am. Dec. 574.

Leake on Contracts, 790. In the civil law novation is of three kinds: 1. Where the debtor and creditor remain the same, but a new debt is substituted for the old; 2. Where the debt remains the same, but a new debtor is substituted; 3. Where the debt and debtor remain, but a new creditor comes in: Adams v. Power, 48 Miss. 451.

Butterfield v. Hartshorn, 7 N. H. 345; 26 Am. Dec. 741; Bonnemer v. Negrete, 16 La. 474; 35 Am. Dec. 217; Currier v. Taylor, 19 N. H. 189.

Parker v. Alexander, 2 La. Ann. 188; Short v. New Orleans, 4 La. Ann. 281; Goldschmidt v. New Orleans, 5 La. Ann. 436; Marsh v. Perry, 6 La. Ann. 669; Pattison v. Creditors, 9 La. Ann. 228; Overend v. Robinson, 10 La. Ann. 728; Rachel v. Rachel, 11 La. Ann. 687.

6 Kelly v. Roberts, 40 N. Y. 432.

not a novation: Hobson v. Davidson, 8 Mart. (La.) 422; 13 Am. Dec. 294. A owed B, and C owed A. By agreement between the three, B accepted C's note for A's debt. C was, unknown to the parties, insolvent at the time. Held, that the loss fell on B: Cadens v. Teasdale, 53 Vt. 460; 38 Am. Rep. 697. A sold to B a wagon. B afterwards sold the wagon to C, who agreed to pay A the price which B had agreed to pay A for the wagon, and A agreed to take C as his debtor for that price. Held, that the debt due to A from B was extinguished: Heaton v. Angier, 7 N. H. 397; 28 Am. Dec. 353.

§ 2573. Rescission by Death.-The contracts of a person are not avoided by his death. Death operates as an assignment in law of all the personal estate of the deceased to his executor or administrator, but subject to the liabilities of the deceased chargeable against it. The title of the executor is derived from the will of the deceased, and vests immediately upon the death, though the only proof of the title is the probate of the will. The title of the administrator is derived from the letters of administration, and takes effect from the grant.' The death of one of the contracting parties does not operate as a revocation or discharge of his part of the agreement, where it is of such a character that it can be performed by his personal representative. There are, however, certain contracts which are expressly or impliedly limited to or conditional upon the life of the promisor, and do not survive to or against the executor. The following are examples of this class, viz.: All contracts concerning the specific personal qualities, skill, or services of a person;" contracts to marry. So contracts of service are personal, and are discharged by the death of the master or servant."

1 Hawkins v. Ball, 18 B. Mon. 816; 68 Am. Dec. 755; Brown v. Leavitt, 26 N. H. 493; Billings's Appeal, 106 Pa. St. 558; Fowler v. Kelly, 3 W. Va. 71; Pahlman v. King, 49 Ill. 266; Martin v. Hunt, 1 Allen, 418; Parnell v. James, 6 Rich. 370; Green v. Rugely, 23 Tex. 539.

2 Hawkins v. Ball, 18 B. Mon. 816; 68 Am. Dec. 755.

3 Wills v. Murray, 4 Ex. 866; Jarrin v. Browne, 59 Cal. 44; Shulz v. Johnson, 5 B. Mon. 497; Siler v. Gray, 86 N. C. 566; Billing's Appeal, 106 Pa. St. 558.

Chamberlain v. Williamson, 4 Maule & S. 415; Wade v. Kalbfleisch, 16 Abb. Pr., N. S., 104.

Leake on Contracts, 1259. An express provision in the contract for

Contracts of partnership are dissolved by the death of one of the partners, whether entered into expressly for a fixed term or not, unless it be expressly stipulated to the contrary.1

§ 2574. Release-Effect of.-Release is a discharge of the claim or right of action growing out of the breach of an agreement. A party may release a cause of action against one upon a consideration flowing from another.' A release under seal operates as an estoppel against the party executing it. A cause of action accruing from a breach of covenant cannot be discharged by any act of the plaintiff short of a release, or the acceptance of something in satisfaction of that cause of action.3

§ 2575. Form and Requisites of Release.-At common law, a release of a right of action for a breach of a contract, whether under seal or not, was required to be under seal." As a general rule, a sealed instrument cannot be varied or abrogated by another agreement, unless the latter is also sealed. A parol release of a judgment for less than its face, although indorsed on the execution, is invalid. release not under seal will not operate to release the parties defendant in an action for damages caused by an unlawful assault and battery. A release, or agreement amounting to a release, made upon good consideration,

the termination of the service does not exclude or affect the implied condition, arising from the nature of the service, of the continued existence of the parties. Thus a farm-bailiff, contracting to serve at weekly wages, with residence in a farm-house, the service to be determinable by six months' notice or payment of six months' wages, upon the death of the employer, was held to have no claim against the administrator for not continuing the service: Farrow v. Wilson, L. R. 4 Com. P. 744.

1 Leake on Contracts, 1261.

2 Where the discharge is before

A

breach, "rescission," and not “release," is strictly the proper term. But in practice the word "release" is often used in the wider sense.

3 Compton v. Elliott, 48 N. Y. Sup. Ct. 211.

Rountree v. Jacob, 2 Taunt. 181; Harding v. Ambler, 2 Mees. & W. 279. Nesbitt v. McGehee, 26 Ala. 748.

6 Leake on Contracts, 922.

7 Pratt v. Morrow, 45 Mo. 404; 100 Am. Dec. 381.

8 Weber v. Couch, 134 Mass. 26; 45 Am. Rep. 274.

9 Smithwick v. Ward, 7 Jones, 64; 75 Am. Dec. 453.

and in the form of a binding contract, although not under seal, may be effectual in equity in discharge of the debt.' A voluntary release, or intention to release, without a deed, and without consideration, is equally inoperative in equity and in law. At law a release under seal cannot be varied by evidence of a parol agreement between the parties at the time of its execution. But in equity a release under seal may be inquired into and corrected. A receipt of money "in full" of a demand for unliquidated damages is treated as a release, and not subject to be contradicted or explained by parol evidence. When the creditor voluntarily delivers up to his debtor a bond, note, or other evidence of his claim, the law will imply the release and discharge of any right of action of the creditor thereupon. Destroying a bond with the intention of forgiving the debt releases it.' A release need not be averred to be under seal. A release imports a seal, and it is a matter of evidence whether it have a seal or not, if a seal be necessary.

§ 2576. What Matters Release Covers. The release of a debt discharges all securities held by the creditor," but cannot operate to extinguish or defeat any future rights or claims.10 A release in general terms may be construed as qualified by the recitals or other matter in the deed, or as restricted by the particular object of the

1 Taylor v. Manners, L. R. 1 Ch. 48; Thomason v. Dill, 30 Ala. 444.

2 Jackson v. Stackhouse, 1 Cow. 122; 13 Am. Dec. 514.

3 Leake on Contracts, 923; Buswell v. Poineer, 35 How. Pr. 450; 37 N. Y. 314; Allen v. Cowan, 28 Barb. 108; Ryan v. Ward, 48 N. Y. 204; 8 Am. Rep. 539.

Leake on Contracts, 923; Barnes v. Ward, Busb. Eq. 93; 57 Am. Dec. 590.

Coon v. Knap, 8 N. Y. 402; 59 Am. Dec. 502; Chestnut v. Strong, 1 Hill, 122.

6 Beach v. Endress, 51 Barb. 570. 'Gardner v. Gardner, 22 Wend. 526; 34 Am. Dec. 340.

8 Ill. Cent. R. R. Co. v. Read, 37 Ill. 484; 87 Am. Dec. 260.

Cowper v. Green, 7 Mees. & W. 633; Jackson v. Stackhouse, 1 Cow. 122; 13 Am. Dec. 514.

10 Francis v. Boston and Roxbury Mill Corporation, 4 Pick. 365, 368; Hastings v. Dickinson, 7 Mass. 153; 5 Am. Dec. 34; Gibson v. Gibson, 15 Mass. 106; 8 Am. Dec. 94; Quarles v. Quarles, 4 Mass. 688; Cocke v. Stuart, Peck, 137.

release. Thus a general release is qualified and controlled by a recital of the particular class of debts to which alone it is intended to apply. A general release in a composition deed is construed as restricted to the debts and liabilities which are the proper subjects of the composition and provable under it. Where a condition is disjunctive, a release of one alternative releases the other also.

§ 2577. Covenant not to Sue. —A covenant made by a creditor with his debtor not to sue him at any time for the debt, although it does not in terms release the debtor, and purports only to bind the creditor by covenant, is held, upon the principle of avoiding circuity of action, to be equivalent, in effect, to a release, and may be so pleaded in an action by the creditor for the debt, the subject of the covenant. But this principle applies only between the parties to the covenant. A covenant not to sue for a limited time cannot be pleaded as equivalent to a release; it operates as a covenant only. So with a simple contract not to sue for a limited time, or merely in suspension of a debt; it operates by way of contract only, and cannot be pleaded in bar of an action for the debt. But where there is a condition attached to such a covenant, that if an action is brought within the limited time the right of action will be forfeited, this may be pleaded in bar of an action brought within the time. A covenant not to sue within a limited period does not apply to any new cause of action which may arise between the debtor and creditor."

1 Payler v. Homersham, 4 Maule & S. 423; Simons v. Johnson, 3 Barn. & Adol. 175.

2 Haselgrove v. House, L. R. 1 Q. B. 101.

3 Smith v. Durell, 16 N. H. 344; 41 Am. Dec. 732.

Russell v. Adderton, 64 N. C. 417. A bond conditioned not to sue, unless on a future contract, is a perpetual covenant, amounting to an absolute release of all demands on any contract

then existing: Cuyler v. Cuyler, 2 Johns. 186.

5

Hatton v. Eyre, 6 Taunt. 289; Walmesley v. Cooper, 11 Ad. & E. 216.

Ayloffe v. Scrimpshire, 2 Salk. 523; Clopper v. Union Bank, 7 Har, & J. 92; 16 Am. Dec. 294. Contra, Robinson v. Godfrey, 2 Mich. 408; Morgan v. Butterfield, 3 Mich. 615.

Ford v. Beech, 11 Q. B. 852.

8 Leake on Contracts, 929. Brigham v. Eveleth, 9 Mass. 538.

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