CHAPTER V. NOVATION. SECTION 655. Novation defined. 656. Modes of novation. 657. Novation made by contract. 658. Sealed contracts, how modified. defined. §655. Novation is the substitution of a new obligation Novation in place of an existing one. $656. It may be made 1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation; 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former.' 1 Code La., 2185. Modes of novation. § 657. Novation is made by contract, and is subject to Novation all the rules concerning contracts in general. § 658. A contract under seal cannot be modified, except as to the time of performance,' without an agreement under seal, or an executed agreement without seal.3 1 Flynn v. McKeon, 6 Duer, 203; Clark v. Dales, 20 'Allen v. Jaquish, 21 Wend., 628; Delacroix v. Bulkley, 8 Pierrepont v. Barnard, 6 N Y., 279. made by contract. Sealed conmodified. tracts, how Rescission extinguishes contract. Who may rescind. Rescission by promiser What must be done by CHAPTER VI. RESCISSION. SECTION 659. Rescission extinguishes contract. 660. Who may rescind. 661. Rescission by promise. 662. What must be done by rescinding party. 663. Certain stipulations do not defeat right to rescind for fraud, &c. § 659. A contract is extinguished by its rescission. § 660. Rescission may be made by mutual consent, or by any party whose consent to the contract was not real or free, or whose consent is for any other reason voidable.' 1 See Nichols v. Michael, 23 N. Y., 266; Martin v. McCormick, 8 id., 335. 661. If the consideration for a promise fails through the fault of the promisee,' in whole or in part,' or if it becomes wholly' void from any cause, the promiser may rescind his contract. 1 Sherman v. White, How. App. Cas., 29; Winter v. Livingston, 13 Johns., 54. 2 Petry v. Christy, 19 Johns., 53; see Duncan v. Edgerton, 6 Bosw., 36. "Harmon v. Bird, 22 Wend., 113. Head v. Stevens, 19 Wend., 411; Cross v. Huntley, 13 id., 386; Putnam v. Westcott, 19 Johns., 73; Tappen v. Van Wagenen, 3 Johns., 465. § 662. Rescission, when not effected by consent, can be rescinding accomplished only by the rescinding party using reasonable diligence' to comply with the following rules: party. 1 Ladd v. Moore, 3 Sandf., 589. 1. He must rescind promptly,' upon discovery of the facts, 'Fisher v. Fredenhall, 21 Barb., 82; Wheaton v. Baker, 2 14 id., 597; M'Carty v. Ely, 4 E. D. Smith, 375; Ros- ? See same cases. or upon release from the duress, undue influence,' or disability, on account of which he rescinds, if he is aware of his right to rescind;1 4 'Wood v. Downes, 18 Ves., 123; Crowe v. Ballard, 3 2. He must restore' to the other party everything' of value which he has received from the latter under the contract, or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable, or positively refuses, to do so. 'Fisher v. Fredenhall, 21 Barb., 82; Wheaton v. Baker, 14 id., 600; Matteawan Co. v. Bentley, 13 id., 641; Beed * Fisher v. Conant, 3 E. D. Smith, 199; see Nichols v. The note of the adverse party is valueless: Nichols v. * Colville v. Besly, 2 Denio, 139. Thornton v. Wynn, 12 Wheat., 193; Baker v. Robbins, 2 Denio, 136; Hogan v. Weyer, 5 Hill. 389. Masson v. Bovet, 1 Denio, 69; Ladd v. Moore, 3 Sandf. 589. § 663. A stipulation that errors of description shall not avoid a contract, or shall be the subject of compensation, or both, does not take away the right of rescission for fraud, nor for mistake, where such mistake is in a matter essential to the inducement of the contract,' and is not capable of exact and entire compensation.2 'Robinson v. Musgrave, 8 Carr. & P., 469; Dobell v. When obligation is CHAPTER VII. RELEASE. SECTION 664. When obligation is extinguished by release. 665. Release of one does not release another joint-debtor. § 664. An obligation is extinguished by a release thereextinguish from given to the debtor by the creditor, upon a new con ed by release. Release of one does sideration, or under seal.' This is the law at present. The justice of its restrictions may be doubted. § 665. A release of one of several joint debtors does not not release extinguish the obligations of the others.' another joint debtor Effect of alteration of written contract. 13 R. S. (5th ed.), 65; Laws 1838, ch. 257. CHAPTER VIII. ALTERATION OF INSTRUMENT. SECTION 666. Effect of alteration of written contract. § 666. The obligation of the debtor on a written contract is extinguished, 1. By a material' alteration' or a destruction of the instrument wilfully made by the creditor without the consent of the debtor." But if the contract is executed in duplicate, an alteration of one copy only is not deemed an alteration of the contract." 2. By its destruction or cancellation by consent of the parties, for the purpose of extinguishing the obligation." |