
    GROSMAN CO. v. F. DE WITT & SON et al.
    (No. 7814.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 3, 1917.)
    Trial <®=3251(7) — Instructions—-Issues.
    The elements of tho issues of estoppel in pais and novation being so radically different, and the proof necessary to sustain them so unlike, judgment on a verdict for defendant will not be affirmed as a correct result founded on an incorrect reason, where the evidence raised the issue of novation, and submission to the jury was on the theory of estoppel; especially where plaintiff’s testimony tends to disprove novation.
    Appeal from Dallas County Court at Law; T. A. Werk, Judge.
    Action by the Grosman Company against F. De Witt & Son and another. FYom the judgment for the named defendant, plaintiff appeals.
    Reversed and remanded.
    Wood & Wood and W. W. Hagebush, both of Dallas, for appellant.
   RASBURY, J.

Appellant sued appellees De Witt & Son, as makers, and appellee Weatherford, as indorser, .upon .a series of promissory notes executed and delivered in payment of a soda fountain sold to appellees De Witt & Son by appellant and subsequently by De Witt & Son to Weatherford, who, at the time of his purchase, indorsed the notes, and to foreclose a chattel mortgage on the fountain. There was a trial by jury, resulting in verdict in favor of appellees De Witt & Son, and. against appellee Weather-ford, followed by similar judgment from which this appeal is prosecuted.

The appellant’s testimony tended to.show that after appellees De Witt & Son purchased the fountain they consummated a sale of their business to Weatherford upon condition that appellant would permit De Witt & Son to convey the fountain to Weatherford and permit him to indorse their notes and assume payment of same, to which appellant consented, and whereupon Weatherford did indorse the notes and take over the fountain, while the testimony of De Witt & Son tended to show not only an agreement to permit a conveyance of the fountain and an in-dorsement and assumption of the note by Weatherford, but as well a release of De Witt & Son of all liability on the notes. The evidence adduced in support of the facts .briefly related consisted largely of correspondence, some shown by original letters, some by carbons, and some by oral proof of contents of those lost.

The conflicting facts being as stated, the court, among other things, charged the jury, in substance, that in the event they believed the facts dedueible from appellees’ testimony to be true, that then appellant would be estopped to recover against appellees De Witt & Son on said notes, correctly defining for the benefit of the jury the elements of estoppel. Appellant excepted to the court’s charge, and contends, we think correctly, that the issue of estoppel was not raised by the evidence, and should not have been submitted. While loose discussions seem inevitable when estoppels in pais or equitable es-toppels, which result from declarations, admissions, etc., arise, yet it may in general be said to be “the effect of voluntary conduct of a party whereby he is precluded, both at law and in equity, from asserting the rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who has, in good faith, relied upon such conduct, and has been led thereby to 'change his-.-position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.” Edwards v. Dickson, 66 Tex. 613, 2 S. W. 718. It is obvious, we think, in the light of the definition quoted, that the release of one debtor and the acceptance of another, as the testimony of appellees at most tends to show, does not present estoppel in pais. The evidence of appel-lees raises not estoppel, but novation, which is said in a general way to be effected “by the 'substitution of a 'new obligation between the same parties with the intention to extinguish the old one, or by the substitution of a new - debtor with the intention to release the old one, or by the substitution of a new creditor with the intent to transfer the rights of -the old one to him.” Gimble & Sons v. King et al., 43 Tex. Civ. App. 188, 95 S. W. 7. The elements of the two issues are so radically different, and the proof necessary to sustain the respective issues so unlike, that- we ar.e unable to say, particularly in view of the fact that appellant’s testimony tends to disprove novation, that the verdict should be affirmed as correct, though founded on an incorrect reason; and for that reason the judgment is reversed, and the cause remanded.

• Reversed and remanded. 
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