Decided: May 16, 1932.
NEW MIAMI SHORES COMPANY, RESPONDENT,
FREDERIC L. DUGGAN, APPELLANT
On appeal from the Supreme Court. The case was tried on an agreed state of facts before Judge Oliphant, whose opinion is printed in 9 N.J. Mis. R. 620; 155 A. 262.
For the appellant, James J. McGoogan.
For the respondent, Peter Backes.
[109 NJL Page 220]
The judgment will be affirmed, for the reasons stated in the opinion of Judge Oliphant.
It may be well to add that the only affirmative defense set up in the answer is payment. The rule seems to be that novation may not be proved under a general denial, nor even under a plea of payment. The defense of novation is an affirmative defense in the nature of release and discharge, and must be pleaded in a similar manner as a basis of proof. 46 Corp. Jur. 624. However, the defense was considered on its merits by the trial judge, and it has been so considered here.
For affirmance -- THE CHIEF JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 14.
For reversal -- None.