
    No. 874
    SCHELLENTRAGER v. McCORMACK
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8345.
    Decided Oct. 24, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    853. NOVATION — 1105 Statute of Frauds —Where creditor releases one debtor and accepts another in his stead, thus making a no-vation,, such agreement is not within the statute of frauds.
    Error to Municipal Court.
    Judgment affirmed.
    Smith, Olds, Smith & Shepherd, Cleveland for Schellenti ager.
    Cull, Burton & Laughlin, Cleveland, foif McCormack.
    STATEMENT OF FACTS
    In the court below, the defendant in error was plaintiff and brought her action against Schellentrager to recover the sum of $420. In the trial, she recovered a judgment for the full sum. A motion for a new trial was made and overruled and error is prosecuted to this court on several different grounds.
    It seems that one Arthurs had become the owner of a contract of a lot of land which afterwards became the property of Schellen-trager, who now owns the title to said property. The contract provided that Arthurs should pay $21 per month on the land contract and he had become in an ears and had, at various times, applied to Miss McCormack, through his wife, her sister, that she should let them have the money to make these payments. She advanced, at various times, the sum of $420 which went to pay this contract.
    Subsequently Arthurs got in arrears again, and, in order to save what Miss McCormack had in the contract, which was practically all that had been paid, Schellentrager and Arthurs and Miss McCormack entered into a triangular agreement, whereby Schellentrager was to have an assignment of this contract from Arthur s to him, and he apparently was to take care of the claim of Miss McCormack.
   OPINION OF COURT.

The following is taken verbatim from the opinion.

VICKERY, J.

The record is pretty clear that Miss Mc-Cormack gave up any and all rights against Arthurs that she had, and theie apparently was a substitution of Schellentrager for Ar-thurs to pay Miss McCormack’s debt, or the debt due Miss McCormack. In other words,there was a novation and plaintiff became the principal debtor and at once owed whatever was due Miss McCormack. If this be true, then it disposes of one of the objections to the judgment that was rendered in the court below, that is, that it was the agreement to pay another’s debt and, not being in writing, it comes within the statute of frauds, and is, therefore, unenforcible. We think, because of the arrangement, it shows that it becomes the debt of Schelletrager to Miss McCormack, and therefore it was not within the statute of frauds and did not need to be in writing.

No reversible error appearing on the record, the judgment will be affirmed.

(Sullivan, PJ. and Levin, J. concur.)  