Lechleiter v. Lechleiter

6 Citing cases

  1. Security Ben. Life Ins. Co. v. F.D.I.C.

    804 F. Supp. 217 (D. Kan. 1992)   Cited 15 times
    Holding assumption agreement in which subsequent insurer was substituted for original insurer not clear and definite proof of consent of policyholders to extinguish or relieve original insurer of its obligations where assumption certificates failed to state original insurer was "released" or that its obligations were transferred in full to subsequent insurer

    The relevant law of both Illinois and Kansas is in accord with the common law. See Burnett v. West Madison State Bank, 375 Ill. 402, 31 N.E.2d 776, 780 (1940) (facts alleged were consistent with idea that depositor looked to both the original bank and successor bank for payment; in absence of clear proof of novation, successor bank was additional debtor); Phillips and Arnold, Inc. v. Frederick J. Borgsmiller, Inc., 123 Ill. App.3d 95, 78 Ill.Dec. 805, 810, 462 N.E.2d 924, 929 (1984) (in the absence of clear proof of novation, third person's assumption of debt makes third person merely an additional debtor); Lechleiter v. Lechleiter, 330 Ill. App. 517, 71 N.E.2d 845, 847-48 (1947) (if original note is retained by creditor despite execution of renewal note, creditor may sue on either the renewal note or the original); Davenport v. Dickson, 211 Kan. 306, 507 P.2d 301, 306 (1973) (even if assignee undertakes to perform assignor's duties, assignor remains bound by those duties so long as his creditor does not accept assignee's new promise in lieu of duty of assignor; such assumption merely gives the creditor an additional security; citing Corbin on Contracts); State ex rel. v. Bank Sav. Life Ins. Co., 147 Kan. 170, 75 P.2d 297, 301 (1938) (insured need not dissent from terms of reinsurance contract in order to recover from the insurer's receiver on the original insurance contract); cf. Elliott v. Whitney, 215 Kan. 256, 524 P.2d 699, 703 (1974) (old contract obligation extinguished by novation; if new agreement constitutes novation, breach of new agreement will not revive the discharged claim and parties' rights are controlled by new agreement). SBL transferred its

  2. River Forest Inc. v. Multibank 2009-1 Res-Adc Venture, Llc.

    331 Ga. App. 435 (Ga. Ct. App. 2015)   Cited 2 times
    Holding that assignee established a prima facie right to recover the underlying debt owed

    See Waggoner, 999 F.2d at 829, n. 3; Cadle Co., 897 P.2d at 1106, n. 1. Accordingly, under the reasoning of these foreign courts, if an original note has been renewed rather than extinguished through a novation, it is sufficient for a person seeking to recover the outstanding debt to bring suit as the “holder” of the original note. See F.D.I.C. v. Waggoner, 999 F.2d 826, 829, n. 3 (5th Cir.1993); Lechleiter v. Lechleiter, 330 Ill.App. 517, 71 N.E.2d 845, 848 (1947); Dyer v. Bray, 208 N.C. 248, 180 S.E. 83 (1935); In re Foreclosure of a North Carolina Deed of Trust executed by L.L. Murphrey Co., 764 S.E.2d 221, 229 (N.C.Ct.App.2014); Cadle Co. v. Wallach Concrete, 120 N.M. 56, 897 P.2d 1104, 1106, n. 1 (1995); Chapman v. Crichet, 127 Tex. 590, 95 S.W.2d 360, 363 (1936); Thompson v. Chrysler First Business Credit Corp., 840 S.W.2d 25, 29 (Tex.App.1992); Villarreal v. Laredo Nat. Bank, 677 S.W.2d 600, 607 (Tex.App.1984). It is true that the renewal may contain provisions modifying some of the terms and conditions of the original note (such as the interest rate) that may have an effect on a plaintiff's ultimate recovery, but that is a separate issue from whether the plaintiff may bring suit as the “holder” of the original note.

  3. Vetter v. Security Continental Ins. Co.

    555 N.W.2d 10 (Minn. Ct. App. 1997)   Cited 1 times

    The parties' intent will determine whether a novation has been accomplished. Lechleiter v. Lechleiter, 330 Ill. App. 517, 71 N.E.2d 845, 848 (1947). Ultimately, the trier of fact is to determine, after reviewing all underlying circumstances, "whether the creditor has impliedly assented to the discharge of the original debtor."

  4. Phil. Arnold, Inc. v. Borgsmiller, Inc.

    123 Ill. App. 3d 95 (Ill. App. Ct. 1984)   Cited 23 times
    Holding assumption agreement merely added additional debtor absent clear proof of novation

    ( Emmenegger Construction Co. v. King (1982), 103 Ill. App.3d 423, 431 N.E.2d 738.) Our review of the record in the case at bar persuades us that the trial court's finding in paragraph nine of the judgment, namely, that the work done by the plaintiff in September and October of 1981 was not in performance of the proposal and acceptance of October 8, 1980, is plainly contrary to the manifest weight of the evidence. • 2 A 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. ( Printing Machinery Maintenance, Inc. v. Carton Products Co. (1957), 15 Ill. App.2d 543, 147 N.E.2d 443; Lechleiter v. Lechleiter (1947), 330 Ill. App. 517, 71 N.E.2d 845.) Whether a novation has been accomplished depends upon the intention of the parties. ( Lechleiter.)

  5. Alton Banking Trust Co. v. Schweitzer

    121 Ill. App. 3d 629 (Ill. App. Ct. 1984)   Cited 13 times
    Finding exception to merger rule where "it plainly appears, from the character of the contracts, that the last one was not intended to be in performance or supersedure of the former one, and that the provisions in the former, not embraced in the latter, were intended to remain unaffected"

    The intention of the parties may be inferred from the circumstances and actions of the parties. Lechleiter v. Lechleiter (1947), 330 Ill. App. 517, 71 N.E.2d 845. • 4 We do not think evidence produced at trial convincingly indicated that all parties to the 1978 guaranty intended to put the 1980 agreement in its place.

  6. Printing Mach. Maintenance v. Carton Products

    15 Ill. App. 2d 543 (Ill. App. Ct. 1958)   Cited 16 times
    Indicating that the delivery of machinery pursuant to a contract between the parties constituted only partial performance of that contract and that the parties still had a right, therefore, to rescind the contract by mutual agreement

    Such assent need not be specifically mentioned in the new contract. Lechleiter v. Lechleiter, 330 Ill. App. 517; Burnett v. West Madison State Bank, 375 Ill. 402; Swords Co. v. Hogland, supra. Here, according to the affidavits, when the negotiations were entered into Hirsch, as president of the Hirsch Enterprises, Inc., participated. At the same time Hirsch was the president and agent of the defendant, a fact well known to Fishbane, the agent of the plaintiff.