12. novation is meant that a debtor contracts toward his creditor a new debt which is sub stituted for the old one, the latter being extinguished; or a new debtor is substituted for a former one, who has been discharged toward the creditor; or by the effect of a new contract, a new creditor is substituted for a former one, toward whom the debtor is dis charged. In each case,, the consideration is the crea tion of new rights and liabilities, and the extinction of old ones.
Novation can be effected only between persons capable of contracting. It will not be presumed. The intention to effect it must be evident. As Pol lock puts it,' whether there has been novation in any particular case is a question of fact, but assent to a novation is not to be inferred from conduct, unless • there has been a distinct and unambiguous request. Thus, it has been held that the mere acceptance of a renewal note by a bank is only a conditional payment, and is not a novation of the original note, especially when the bank retains the original note. The bank may, at its option, proceed on the original note and tender the renewal note with its action, or it may pro ceed on the renewal note itself.' It has also been held that when an agent, acting on behalf of a company, guarantees a contract made on behalf of the company, and gives his own promis sory notes to accommodate a third person with whom the contract is made, such giving of notes does not constitute novation; a new debt and a new debtor would be substituted for the previous debt and the previous It has also been held that a settlement of indebtedness* between a debtor and a creditor, by part payment and by notes of the latter, does not make "the intention to effect a novation evi dent," particularly when the creditor retains accepted drafts which he holds for the original debt. He has, therefore, the right to sue and recover on the It has been held, however, that an agreement be tween an employer and an employe, in settlement of a claim for damages caused by an explosion, operates, as a novation, whereby the delictual obligation is ex tinguished and a contractual obligation arises instead.
If the latter be conditional, it only becomes executory upon the fulfilment of the An unpaid vendor of movables, which are delivered to the purchaser on condition that the property shall not pass until the price, payable by instalments, is fully paid up, has the right to revendicate the mov ables, notwithstanding the acceptance by him of the notes of the purchaser, as no novation has thereby taken place.' It has also been held that the accept ance of a draft, for the amount of an overdue note, drawn upon the makers by the holder, and the fact that the latter afterward files a claim on the draft against the estate of one of the acceptors who had made an assignment, and receives dividends, does not effect a novation of the note. The indorsee could, therefore, recover from the maker the amount due on the note, less the sum received as a dividend.' There is no substitution of agreements under the following circumstances. A purchases from B a case of shoes to be delivered in one week; at the end of the week A requests B to postpone the delivery of the shoes for a week longer, and B consents ; at the end of the second week A refuses to accept the shoes, owing to the fact that the price has very materially decreased since he gave the order. A must accept the shoes and pay the price agreed upon.
A distinction must be drawn between a voluntary forbearance to deliver at the request of another, and a substitution of one agreement for another. If A re quests postponement of performance, he must take the risk that in the meantime the price of the goods may change.