Another class of promises to satisfy a debtor's liability deserves particular mention - the promise of an individual or firm to pay the liabilities of an outgoing partner. It is in this kind of case that the greatest difficulty arises in determining whether there is a novation. On principle it is clear that to work a novation the promisor must make an agreement with the creditor to become directly liable to him in consideration that the creditor will accept him as debtor in place of the original debtor.73 It is not enough, therefore, for the creditor to learn of the promise to the original debtor and express assent to that arrangement. Such assent does not necessarily include an agreement to give up the claim against the original debtor. Moreover, the promisor must assent to enter into a contractual relation directly with the creditor. Assuming that there is no novation the case is indistinguishable from any contract to discharge a promisee's debt to a third person. By a curious freak the law of New York 74 does not allow the creditor a remedy on a promise made to his debtor in this class of cases. The law of Pennsylvania,75 on the other hand, though not generally
7 Am. Rep. 440. The further distinction suggested by the court that the promise was not made for the benefit of the mortgagee amounts to nothing. It is true, but it is also true in any usee where a grantee agrees to pay a mortgage.
The case has been followed several times, and it has been held immaterial that the deed creating the second mortgage is on its face absolute. Pardee v. Treat, 82 N. Y. 386; Roe v. Barker, 82 N. Y. 431; Root v. Wright, 84 N. Y. 72; Cole v. Cole, 110 N. Y. 630, 17 N. E. 682; Smith v. Cross, 16 Hun, 487. See also Savings Bank p. Thornton, 112 Calif. 255, 44 Pac. 466; Boyd v. Winte (Okl.), 164 Pac. 781.
A similar principle was applied in favor of a grantee in whose name as trustee a deed with a clause of assumption had been taken without his knowledge. Gifford p. Corrigan, 105 N. Y. 223, 11 N. E. 498. In a second trial of the case, it appearing that the grantee had knowledge of the deed, he was held liable though a bare trustee. Gifford v. Corrigan, 117 N. Y. 257, 22 N. E. 756, 6 L. R. A. 610.
73 See infra, Sec. 1869.
74Merrill v. Green, 55 N. Y. 270; Wheat v. Rice, 97 N. Y. 296; Service v. McDonnell, 107 N. Y. 260, 14 N. E. 314; Comer v. Mackey, 147 N. Y. 574, 42 N. E. 29; Edick v. Green, 38 Hun, 202. But see Claflin v. Ostrom, 54 N. Y. 581; Arnold v. Nichols, 64 N. Y. 117; Hannigan v. Allen, 127 N. Y. 639, 27 N. E. 402, compare Lyon v. Cloch-easy, 86 N. Y. S.245, 43 N. Y. Misc. 67.
75 Townsend v. Long, 77 Pa. 143, 18 Am. Rep. 438; White p. Thielens, 108 Pa. 173; Adams v. Kuehn, 119 Pa, 76, 86, 13 Atl. 184; Delp v. Brewing Co., 123 Pa. 42, 15 Atl. 871; Sargent p. Johns, 206 Pa. 386, 55 Atl. 1051. But it is essential under the Pennsylvania law that property shall have adopting the doctrine of Lawrence v. Fox,76 makes an exception here in favor of the creditor. In fact, there is no reason for discriminating in this class of cases for or against the creditor, and so the matter is generally treated.77 Questions of suretyship may arise, analogous to those in mortgage cases where the party assuming the debt is regarded as the principal debtor.78