
    CONTRACTS — NOVATION—TRIAL.
    [Cuyahoga (8th), Circuit Court,
    December 16, 1901.]
    Caldwell, Hale and Marvin,
    Edward Jarmusch v. Otis Iron & Steel Co.
    1. HxnoNEons Construction ,or Pleading — Trial—Error..
    Where an answer, in an action for damages on a contract entered into by one "• company and subsequently assumed by another company, to whom the busi- , ness of the first .company was sold, attempts- to-set up novation,-but technically fails to do so, a charge construing the, answer as.ayerring novation,:does not constitute prejudicial 'error where it appears that the case was tried on the theory that both the old and -new company-and the plaintiff were parties : to the contract.. ,
    2. Requisites of a Contract of Novation.
    The requisites of a contract of novation are: (1) A previous valid obligation. (2) An agreement of the old parties to the new contract. (3) That the new contract shall be so complete as to extinguish the old contract. ‘(4)¡The making of á Valid new contract. When "this .is done a substitution is accomplished in the debtor and the creditor has his cause of action ’for the violation of the contract against the new debtor oply. ...
    3. Sufficient Evidence of Contract by Novation.,
    Where a person in the employ of one company under a specified contract com tinues to work for a company that has bought out the old company for several years .thereafter, and has interviews ..with the officers-of .the new company in regard to such contract and iu conformity to his contract with-the old corn-il i pany he is placed' on-the pay roll at stipulated wages 'whether be works or ,, not, the jury is, warranted, in finding that he was a party-to-'the contract’of1 1 novation entered into .between the companies, this defeating any claim against . the old company. 11 ' - 1 .. ."
    
      4. Not Within the Statute of Frauds.
    Where one of the .considerations of the sale of an iron and steel plant from one company to another was that the new company should obligate itself to carry out the contracts and obligations of the old company, the obligation is anew one founded on sufficient consideration, and not necessary to be in writing, as required by the statute of frauds,'Sec. 4199, Rev. Stat., as to contracts to answer for the debt, default ór miscarriage of another.
    6. Verdict Sustained; Though Evidence' is Sdight.
    The verdict of the jury will not be set aside where there'is evidence of the facts submitted to them and which they must have foun d jn order to, bring in their verdict, notwithstanding the evidence thereof may be very slight.
    6. Generad Verdict — Defenses need not add be Sustained.
    A general verdict for defendant wili not be set aside on review if there is sufficient evidence to sustain any one of numerous defenses offered. All the defenses need not be sustained by evidence in order to sustain a general verdict.
    Heard on Error.
    Préusser & Wenneman, for plaintiff in error.
    Squire, Sanders & Dempsey, for defendant in error,,
    cited:
    Whüe the finding of the jury is to be taken in favor of the defendant upon each and all of these issues, yet, if a finding upon.any one of them would entitle the defendant to judgment, such, judgment would not be reversed for, error in the instruction,of the court relating-,to either of .the others. . Sites v. Haverstick, 23 O. S. 626. ..
    A debtor cannot secure a new debtor .tq assume his, obligations under a contract without the creditor’s consent. ..His consent is a.necessary incident to such substitution, and that is all .that is held in the case referred to by counsel, recently, reported -in the Supreme Court and found in Dennison University v. Manning, 65 0hio:St. 1.38, Also, Chapin y. Longworth, 31 Ohio St. 421. •■, - ■-
    Had the plaintiff been discharged from the service of the, new company without cause, he would have had a cause of action against it under his contract. 1 Beach Mod. Law of ■ Contracts, Secs. 786, 787.
   CALDWELL, J.

'The plaintiff brought his action' in the common pleas court to recover damages from the Otis Iron & Steel Company for'the violation of a contract that he had with the defendant. ' The plaintiff was injured while in the employ of the defendant and he settled with the defendant the damages he claimed by reason of such injury by' a contract in which he was to have services as a’ crane-boy at certain "wages, and at any time that the defendant thought him capable of doing other work more remunerative, it would give him such work.

In about a year after this contract was made and entered into, the Otié Iron & Steel'Company sold out to the Otis Iron & Steel Company, Limited, an English corporation. The plaintiff continued to work for the new company for a number of years when he left its employ, claiming that he left by reason of the fact that the work that he was doing, which was the same work he entered upon after the making of the contract, had become dangerous to him in his crippled condition by reason of new appliances put in, whereby the cranes were operated by electricity; and then brought this action to recover of the original company.

The original company made an attempt to plead a novation, and undertook to say in its answer, that the plaintiff had, under this contract, worked for the defendant and that there was an agreement to the effect that he should be continued under his contract, by the new company.

The plaintiff claims that he did not know there was any change in the company; that he supposed, for all the years that he was working there, that he was still working for the Otis Iron & Steel Company.

The plaintiff failed to recover in the common pleas court, and he prosecutes his petition in error here, and alleges numerous errors, and desires to have the judgment of the court of common pleas reversed by reason of such errors.

Among other things set up in the answer is a denial of the making of the contract on which suit is brought; and it is claimed that the verdict, being a general one in favor of the defendant, that that means that all the defenses of the defendant are sustained; and that the jury were not warranted in so finding, for the reason that there was no evidence tending to show that the defendant did not enter into the contract; but the law in such case, as established in this state, is, that where there are numerous defenses and the verdict is a general one, if there is sufficient evidence to sustain any one defense the case should not be reversed, and the ground taken by counsel that the case should be reversed for this reason, is not well founded.

The plaintiff claims that he was prejudiced in the charge of the court in that the court stated in substance to the jury that the answer was to the effect that a contract of novation had been entered into between the old and new company and the plaintiff, and it is claimed that the answer is not to that effect, but is only to the effect that the plaintiff entered into a new contract with the new company, and that the old company was not a party to that new contract.

It is true that the answer does claim that there was a novation and, in stating the facts, does not state that the old company was a party to the contract that would work the novation, and that the court perhaps gave a very liberal construction to the answer; but the case was tried upon the theory that both the old and the new company and the plaintiff were parties to the new contract, and it seems that on the trial the answer was treated as setting up the defense fully as stated to the jury, while a literal construction of the answer, it might be said, does not show that the defendant averred that it was a party to the new contract. However, it being so treated on the trial, and evidence being offered tending to show that the old company was a party to the contract, we do not think it reversible error that the court to the jury construed the answer as it did.

It is claimed as error, that the court did not charge upon the statute of frauds. The plaintiff contended that if the new company had agreed to carry out this contract with the plaintiff and at the request of the old company, that it was not a contract that would warrant the plaintiff in bringing suit upon it in case of a breach of the same; that it was a mere promise to pay the debt of another, and not in writing, and hence, under Sec. 4199, Rev. Stat., was not a valid contract and could not take the place of the old contract in law.

The record is silent in a large measure as to what the consideration was that passed from the old company to the new, that induced it to assume liability under this contract; but the entire evidence, taken as a whole, makes it clear that in the sale that was made by the old company of its property to the new company, one consideration was that the new company should obligate itself to carry out and entirely fulfill the obligations of the old company under the contract; if so, there would be no statute of frauds applying to the matter at all, as in such case, the obligation of the new company would be a new obligation founded upon a sufficient consideration, and it would not be necessary to have it in writing, nor could there be any defense to the same when sued upon the new contract.

It is contended that the new company had no power to make such a contract; that it was outside of the business that it was created to do. We see nothing to this point. It was entirely legitimate for the new company to agree to carry out the contract of the old company with the plaintiff as a part consideration of the purchase of the property of the old company.

The attorneys in the case are in contention as to what constitutes a novation, and also as to whether or not there was sufficient evidence in the case to establish a novation.

As we understand it, the requisites of a contract of novation are: (1) A previous valid obligation. (2) An agreement of the old parties to the new contract; that is, of the two parties to the old contract and the party to the new contract. (3) That the new contract shall be so complete as to extinguish the old contract. (4) The making of a valid new contract.

Fijfien this,is¡.done, -a substitution,isr accomplished,,which.may be in the debt, the debtor or creditor. , ,vWheu jt, .results .in,-the substitution of a new debtor, .the creditor, has his cause of action for the violation of the contract, against the new debtor only. ,' ■■■

. It is claimed, that thpse requisites ,of a .contrapt of; novation are:- not established by tl^e evidence, in this;:,

First. There is no evidence showing that the old company entered into any such agreement... The-,evidence,on; this .question'is, not very voluminous, but there, appears in the,1 bill, we think, sufficient-,to. wár-rant the jury in finding that, the; old company did, take, part ¡in the agreement and was instrumental, perhaps wholly, ,in having the; new company assume its liability,to the plaintiff.

Second.. .It, is clajmed ,thqt ,th,e, evidence does -not show that ,the plaintiff was a party to the, agreement of ,novation. There is- no evidence showing that the plaintiff entered into - negotiations: with-th‘e-two companies by which a contract of novation, was made. >, The, evidence consists in showing .that he continued to work,,;un-d,,he claims -.that his continuing to work was,, as he supposed all the,while,,for- .the’ old company, and, that he was ignorant, of any change being made by which one company retired and, another was substituted. , But the Tacts are, such that we think fbe jury were warranted, in concluding,that - he.:.must have known that he was pot working for the, company, with ,which:-he;-made his,first; contract., And-the evidence further , consist^ of theffact thathe went a.t one time, when.he had been, laid,off .or, the ¡works., were- idle,-to the officers of the new company, and, claimed that he had. a contractby which they were to,give him work, and,, after „twp,, interviews upon this matter, he was placed upon the pay roll by reason of his contract,-at a stipulated rate of wages, .whether,.he,worked or;n©t.'- - ■ > ,:- ,

. The jury were-warranted.in ,.finding that, he, was; ¡urging .-with the new company that lie had a contract with it,.which,could only have been the cpntract.of .novatdpn^and that the new company after the officers had made the,proper inquiry as to the obligation; of ;itv acquiesced:; and proceeded to continue to carryout the contract of novation which« was sufficient evidence,to ¡warrant, th.e,ju,ry in, finding,-the verdict it did. ’.

If the .jury w.erej. right thus, far in, its,.consideration- of .thecáse, it would then necessarily follow that the plaintiff, would- have no cause of action against the old ,co,mpanyv ,for. the ,old- contract would be cancelled, and, his cause of action, if ,any,, would be;uponr,the,*hew contract. '• So that, tbe result below-would bp -the,,proper one;,whether;he;had quit work with sufficient,,excuse ,or,not,¡and,the question of. damages as laid down by the.court,, wopld be; a mattpr,pf.no-.consideration jn determining,the correct result of the case in the court of common pleas.

If this verdict was founded upon the charge of the .court as to damages and as to whether the plaintiff had any reasonable excuse. for. quit-: ting his employment, we find.no error in the direction of the court upon that question, and we think the jury was warranted in finding that the plaintiff was not justified in. quitting his employment under, the circumstances. . r

So that, under whichever proposition these questions are considered, the verdict was justified by the jury, and the judgment of the court of common pleas is affirmed. ■  