The opinion of the court was delivered by
ROWELL, J.As the declaration brings the case within the jurisdiction of the County Court, the mere fact that the testimony did not, was not decisive against jurisdiction. It was necessary to go further, and negative plaintiff’s good faith in bringing the suit, by showing, at least, a probable consciousness on his part that he. was not entitled to recover more than a justice could award. Stafford v. Richardson, 13 Vt. 224; Joyal v. Barney, 20 Vt. 154.
By the Noman law, a new contract between the original contracting parties only that dissolved an existing contract, was regarded as a novation. But there was no novation unless the second contract contained something new, as, for instance, the addition or suppression of a condition, a term, or a surety, and was performed. Some of the ancient jurists were of the opinion that novation took place only when the second contract Avas entered into for the purpose of making the novation, and consequently doubts arose as to whén such intention was to be supposed to exist, and different presumptions were laid down by those who treated the subject according to the different cases they had to settle. In consequence a constitution was published, in which it Avas clearly decided that noAration should take place only Avhen the contracting parties expressly declared that their object in making the neAv contract Avas to extinguish the old contract; otherwise the old contract remained in force and the neAv contract was added to it, and each *561gave rise to an obligation still in force. Inst. Lib. III. Tit. XXIX. pi. 3.
But by tbe common law if the parties to a contract make a new and an independent agreement concerning the same matter, and the terms of the latter are so inconsistent with those of the former that they cannot stand together, the latter may be construed to discharge the former. Benjamin’s Principals of Contracts, 114.
On. August 19, 1819, Drown, having previously bought out "Willard, sold to Forrest an undivided half of the blacksmith shop mentioned in the agreement sued upon, and they two then went into partnership in the business of blacksmithing therein, and carried on the business awhile and then dissolved. There is nothing in the record outside of the contracts of sale and of partnership that shows whether it was or was not the intention of the parties that the contract sued upon should be discharged; but it is claimed that the new contracts discharged it as matter of law. But we do not think so. There is nothing in the new contracts inconsistent with the former contract, the purpose of which was, to prevent Forrest from becoming a competitor; but by the new contracts he was not to become a competitor but a co-adjutor, and so the contracts could well stand together and each remain in full force.
The declaration alleges that on June 19, 1816, plaintiffs bought defendant’s blacksmith shop. It then goes on to allege that in consideration that plaintiffs “ would purchase said shop as aforesaid,” defendant then and there promised them that he would not thereafter engage in or carry on the business, etc.; and that, relying on said promise, they purchased said shop.
To prove the promise alleged, plaintiffs introduced in evidence a written agreement, dated the 19th of said June, signed by defendant, whereby he agreed, in consideration of plaintiff’s *562“ having bought ” his blacksmith shop, not to practice or carry on the business, etc.
The defendant claims a variance, for that the consideration of the promise declared upon is executory while that of the promise proved was executed.
The declaration sets up in the first place and, as it were, by way of inducement, the sale of the shop at a time and place named; and when afterwards it alleges that the defendant “then and there promised,” the time of the promise is referable to the time of the sale, as there is no other time antecedently alleged to which it can refer, and so the declaration makes the promise a part of the contract of sale. The date of the promise proved is the same as the alleged date of the sale, and although the words, “ having bought,” indicate past time, they are not construed to mean that the sale was then a past and completed transaction, independent and disconnected from the written agreement, and so to import a past consideration, but to mean that the sale had then been made as one step in a transaction of which the making of the written, agreement was another and a further step, thus making it all one transaction, as the declaration does. This is the fair import of the record, and accords with-the usual course of doing such business.
Judgment affirmed.