Able unhelpfully maintained below that despite an explicit provision in the 1988 sales representation agreement requiring the application of Ohio law, Puerto Rico law should govern if the court were to conclude that no novation had occurred. As this reasoning conspicuously presumed that Able's novation claim would fare no differently under the law of either jurisdiction, and we have verified as much, see, e.g., Federal Land Bank v. Taggart, 508 N.E.2d 152, 157-58 (Ohio 1987); Grant-Holub Co. v. Goodman, 156 N.E. 151, 153-54 (Ohio Ct.App. 1926), we simply apply Puerto Rico law. For one thing, Able merely maintained that Rovipack was its "main" barex resin customer in Puerto Rico, but proffered no competent evidence that Rovipack was its only customer, either in Puerto Rico or elsewhere in the Caribbean.
But the evidence of such knowledge and consent must be clear and definite, since a novation is never presumed. See Grant-Holub Co. v. Goodman (1926), 23 Ohio App. 540, 156 N.E. 151. As the court of appeals observed in Livernois v. Warner-Lambert, [ 723 F.2d 1148 (4th Cir. 1983)], "one may not accomplish a novation without negotiating a common understanding with the other party or parties to an arrangement." (Emphasis added) Id. at 1153.
" Citizens State Bank v. Richart, 476 N.E.2d 383, 385 (Ohio Ct.App. 1984). "[T]here must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement, for it is a well-settled principle that novation is never to be presumed." Id. (quoting Grant-Holub Co. v. Goodman, 23 Ohio App. 540, 546 (1926)). The matter of intent is a question of fact.
Whether express or implied, evidence of a party's knowledge and consent must be clear and definite, as a novation will never be presumed. Bolling v. Clevepark, 20 Ohio App. 3d 113, 125 (1984); see also Grant Holub Co. v. Goodman, 23 Ohio. App. 540 (1924); Moneywatch Cos. v. Wilbers, 106 Ohio App. 3d 122, 125 (1995). "As a general rule, in order to effect a novation involving the introduction of a new party, it is necessary that there be a mutual agreement among the parties to the old and the new obligations whereby the new obligation is substituted for the prior one."
39 Am Jur 266, 272, Novation §§ 21, 33; 66 CJS 714, Novation § 26. The controlling element is the intention of the parties, and, unless there is a clear and definite intention on the part of all concerned to extinguish the old obligation by substituting the new one therefor, a novation is not effected. 66 CJS 703, Novation § 183; 39 Am Jur 266, Novation § 21. And the mere fact that a creditor, with knowledge of the assumption by a third person of the debtor's obligation, consents thereto, does not amount to a release of the original debtor or an extinguishment of the original debt. * * * "Among numerous cases in which it has been held that the taking by the creditor of a note of a third person who has assumed the debt does not of itself operate as a novation releasing the old debtor, see Smith v. Brown, 12 La Ann 299; Grant-Holub Co. v. Goodman, 23 Oh App 540, 156 N.E. 151; In re Daknke-Walker Milling Co., 1 F.2d 404; Lutz v. Williams, 79 W. Va. 609, 91 S.E. 460, LRA 1918A 76; Montgomery Bank Trust Co. v. Jackson, 190 Ala. 411, 67 So. 235; Mount v. Dehaven, 29 Ind. App. 127, 63 NE 330." At the time of purchase the ten purchasers secured the payment of two of the notes by executing a chattel mortgage which described some of the personal property that constituted assets of the business enterprise.
See, also, to the same effect 46 CJ 608-609, Novation § 51. Among numerous cases in which it has been held that the taking by the creditor of a note of a third person who has assumed the debt does not of itself operate as a novation releasing the old debtor, see Smith v. Brown, 12 La Ann 299; Grant-Holub Co. v. Goodman, 23 Oh App 540, 156 N.E. 151; In re Daknke-Walker Milling Co., 1 F.2d 404; Lutz v. Williams, 79 W. Va. 609, 91 S.E. 460, LRA 1918A 76; Montgomery Bank Trust Co. v. Jackson, 190 Ala. 411, 67 So. 235; Mount v. Dehaven, 29 Ind. App. 127, 63 N.E. 330. There is nothing contrary to the foregoing well-settled rules in the sections of the Restatement relied on by counsel for the defendants.
Such a pleading should set forth all the essential elements of a novation clearly and definitely or by necessary inference from the facts averred. Robertson v. Vandalia Trust Co., 228 Mo. App. 1172, 66 S.W.2d 193; Wheatland Tube Co. v. McDowell Co., 317 Pa. 295, 176 A. 217; Benton v. Morningside College, 202 Iowa 15, 209 N.W. 516; Redewill v. Matzenauer, 32 Ariz. 13, 255 P. 486; Kirkup v. Anaconda Amusement Co., 59 Mont. 469, 197 P. 1005; Morrison v. Kendall, 6 Ind. App. 212, 33 N.E. 370; Money v. Dameron, (Tex.Civ.App.) 70 S.W.2d 291; Fredeking et al. v. Read et al., 113 W. Va. 722, 169 S.E. 387; Negbaur et al v. Fogel Const. Co., (Mo.App.), 58 S.W.2d 346; Grant-Holub Co. v. Goodman, 23 Ohio App. 540, 156 N.E. 151; Tudor Press, Inc. v. University Distributing Co., (Mass.) 198 N.E. 244; LeBar et al. v. Patterson, 123 Pa. Sup. Ct. 491, 187 A. 278; 46 C.J. 624, and cases cited.
{¶ 42} The trial court held that by arguing that terms of a new, oral contract supercede the express terms of the restated agreement, appellants were arguing that a novation occurred. See, generally, Grant-Holub Co. v. Goodman (1926), 23 Ohio App. 540, 545; Bolling v. Clevepak Corp. (1984) 20 Ohio App.3d 113, 125. {¶ 43} On appeal, appellants stated, "Kindly note that the appellants did not plead a novation but instead plead [sic] a breach of contract claim in the alternative to the unjust enrichment claim. * * * Whatever you call that, the `third period' of the relationship, if indeed it is considered a new contract, a quasi contract, or a novation * * *."
" King Thompson, Holzer-Wollman, Inc. v. Anderson (1994), Franklin App. No 93APE08-1155. A novation can never be presumed. Grant-Holub Co. v. Goodman (1926), 23 Ohio App. 540 . See, also, Dalicandro v. Morrison Road Development Co., Inc. (2001), Franklin App. Nos. 00AP-619 and 00AP-656 (this court will not presume a novation where neither party introduced evidence establishing a clear and definite intent to effect a novation). A party's knowledge of and consent to the terms of a novation need not be express, it may be implied from the circumstances or the parties' conduct.
In this case, the substitution of tenant names on the lease does not constitute a novation because there was no discharge of appellant from his original obligations under the lease. Grant-Holub Co. v. Goodman (1926), 23 Ohio App. 540, 547, 156 N.E. 151, 153-154. Likewise, the record does not indicate a benefit flowing to appellee by accepting the substitution of tenants.