
    
      GORDON & AL. vs. M'CARTY.
    
    The delegation by which a debtor gives to the creditor a new debtor, who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared, that he intends to discharge his debtor, who has made the obligation.
    Appeal from the court of the first district.
   Martin, J.

delivered the opinion of the court. The plaintiffs sue for the amount of sundry goods sold by them to the defendant, who pleaded the general issue; and that, if any goods were taken for him, in the plaintiff store, it was understood they were to be, and they were actually, paid for by P. Lanusse, to whom he has reimbursed the amount of them.

Benoit, a witness of the plaintiffs deposed, he was a clerk of theirs in 1819, and was in their store when the defendant, and P. Lanusse, came to buy goods. The defendant, several times requested, that a separate account might be kept of the goods purchased by him; that, some time after, the witness called on Lanusse for a settlement, and was told the defendant had carried his bill of parcels home; whereupon he made out a new one, but he is not certain whether he included in it the goods purchased by both the defendant and P. Lanusse. The latter gave his own separate note for the whole. The goods mentioned in the petition were sold to the defendant, at the time, and for the price there stated. The goods sold to the defendant, and those sold to Lanusse were debited respectively. Separate accounts, or bills of parcels, were delivered to each of them. The account carried by the witness to Lanusse, included the account of the goods purchased by the defendant, and those purchased by Lanusse. Neither of the plaintiffs knew in what manner that account was made. He was authorised to collect debts due to the plaintiffs, and to give acquittances.

East'n District.

Feb. 1821.

L'Espout was a clerk to Lanusse, when Benoit brought the plaintiffs account for the goods purchased by the defendant and Lanusse. The plaintiffs were credited in Lanusse's books for the whole, and the defendant debited for his portion; and afterwards Lanusse gave his note to the plaintiffs for the whole account. The defendant settled with Lanusse, and paid him the amount of his goods, before Lanusse's note to the plaintiffs was protested.

Eustis for plaintiffs, Turner for defendant.

The district court gave judgment for the plaintiffs, and the defendant appealed.

The plaintiffs have proven, that the goods, the price of which they claim, were purchased from them by the defendant, and for his own account. He, therefore, became indebted to them, and is not discharged by the note of Lanusse, which the plaintiffs received.

The delegation by which a debtor gives to the creditor a new debtor, who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared, that he intends to discharge his debtor, who has made the obligation, Civ. Code, 296, art. 176.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.  