Elkins v. Henry Vogt Machine Co.
Cases that cite this one
16 later published cases cite this decision.
- McIllwain v. Bank of Harrisburg (Ark. Ct. App. 1986)
- Ward v. Worthen Bank & Trust Co., N.A. (Ark. 1984)
- Barton v. Perryman (Ark. 1979)
- National American Insurance Company, a Nebraska Corporation v. Brenda H. Hogan, Individually (8th Cir. 1999)
- First National Bank in Blytheville v. Ellis Gin Co. (Ark. 1979)
- Alston v. Bitely (Ark. 1972)
- Camfield Tires, Inc. v. Moseley (Ark. 1972)
- Simmons National Bank v. Dalton (Ark. 1960)
- Dunlop Tire and Rubber Corporation v. Fred Thompson, D/B/A Etc. (8th Cir. 1959)
- Heller v. Mattar (United States District Court for the Western District of Arkansas 1955)
- Norden v. McCallister (Ark. 1945)
- Riddick v. White (Ark. 1937)
- Hanson v. Louisiana Oil Refining Corp. (Ark. 1932)
- Murphy v. Winham (Ark. 1927)
- Natl. American Ins. v. Hogan Construction (8th Cir. 1999)
- Rose v. Million (Ark. 1921)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
(after stating the facts.) The answer sufficiently alleged a defense to the suit, but the burden of proof was upon the defendants, appellants, to establish the truth thereof.
“Novation is the substitution by mutual agreement of one debtor, or of one creditor for another whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished,” * * * * 29 Cyc. 1130.
“It is not essential that the assent to and acceptance of the terms of the novation be shown by express words to that effect, but the same may be implied from the facts and circumstances attending the transaction, and in the conduct of the parties thereafter. Such consent is not to be implied merely from the performance of the contract by the substitute, for that might well consist with the continued liability of the original party, the substitute acting for that purpose in the capacity of agent for the original obligor.” * * * * 29 Cyc. 1132-1133. Logan v. Williamson, 3 Ark. 220; Brewer & Son v. Winston, 46 Ark. 166; see also Union Cent. Life Ins. Co. v. Boyer, (O.) 64 N. E. 435; Walker v. Wood (Ill.) 48 N. E. 919; DeWitt v. Monjo, 61 N. Y. Supp. 1046.
They had the right to introduce testimony in support of the allegations of their answer and any correspondence, transactions, conduct or admissions of appellee company or its authorized agent tending to prove it and also the deposition of its said secretary taken in the case by appellee, its attorneys having consented thereto, and the court erred in the exclusion of such testimony from the jury. It was substantial testimony which would have supported a verdict in favor of appellee under proper instructions, had the jury seen fit to give it credit and the court erred in its rulings excluding the testimony and in directing the verdict. Williams v. St. L. S. F. Ry. Co., 103 Ark. 401; Brigham v. Dardanelle, etc., Ry. Co., 104 Ark. 267.
The judgment is therefore reversed and the cause remanded for a new trial.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.