From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover the purchase price of shares of stock defendant Helen A. Brown appeals.

The essential facts are:

September 10, 1936, H. R. McClintock with defendant Helen A. Brown’s consent assigned his rights under the foregoing agreement to plaintiff by a document reading as follows:

At the same time defendants executed a contract with plaintiff reading as follows:

February 9, 1938, plaintiff made written demand that defendant repurchase the 1875 shares of stock referred to in the agreements of March 28, 1936, and September 10, 1936. A portion of the written demand, which was delivered to defendants, read as follows:

This demand defendants failed to comply with.

The questions necessary to be determined are:

The first question must be answered in the affirmative, and is governed by these principles of law:

(1) Novation is the substitution of a new obligation for an existing one and is made (a) by the substitution of a new obligation between the same parties with intent to extinguish the old obligation, (b) by the substitution of a new debtor in place of the former one with intent to release the latter, or (c) by the substitution of a new creditor in place of the former one with intent to transfer the rights of the former creditor to the new creditor. (Sec. 1531, Civ. Code; 46 Cor. Jur., (1928) 573, see. 1.)

(2) The effect of a novation is to make the original agreement a nullity (that is, void and of no effect), and the rights of the new parties are governed solely by the new agreement. (Struck & Johnson Co. v. Brown, 113 Cal. App. 691, 693 [ 298 Pac. 1036 ]; Conklin v. Woody, 33 Cal. App. 554, 560 [ 165 Pac. 54 ] ; 20 Cal. Jur., (1925) 253, sec. 7.) The novation in legal contemplation gives rise to a situation which is the same as if there had never been a former agreement or obligation.

Applying these rules to the present ease, the agreement of September 10, 1936, between plaintiff and defendant H. A. Brown, together with the assignment of H. R McClintock of the same date, approved by said defendant, resulted in a novation and a new agreement, whereby H. R McClintock was released from all obligations to defendants and plaintiff was substituted in his place and stead in a contractual relation with defendants governed by their contract as evidenced by the written agreement between them dated September 10, 1936. Hence, unless one of the questions hereafter discussed is decided adversely to plaintiff, plaintiff was entitled to recover the sum of $3,250 from defendants, the agreement be tween them being a simple agreement, so far as we are here concerned, upon the part of the defendants to repurchase shares of stock from the plaintiff at a fixed price within a given period.

The second question must also be answered in the affirmative. It is clear that the contract here under consideration was as heretofore stated a simple agreement upon the part of the defendants to repurchase shares of stock from the plaintiff at a fixed price within a given period. Section 1783 of the Civil Code is a portion of the Uniform Sales Act, which has been adopted in California. California has also adopted the Uniform Stock Transfer Act. (Sec. 330 et seq., Civ. Code.) It has uniformly been held that the Uniform Sales Act does not include within its provisions a contract for the repurchase of shares of stock. (Smith v. Lingelbach, 177 Wis. 170 [ 187 N. W. 1007, 1008 ]; Goodhue v. State Street Trust Co., 267 Mass. 28 [ 165 N. E. 701, 704 ]; Millard v. Green, 94 Conn. 597 [ 110 Atl. 177, 181 , 9 A. L. R. 1610]; 1 Uniform Laws Annotated, (1931) 15.)

The complaint in the instant case therefore stated a cause of action, as the rule is established in California that where there is a sale of stock accompanied with a repurchase agreement of the stock at a fixed price, the vendee after tender of the stock and demand that the vendor repurchase the same may upon making such allegations recover the amount specified in the agreement. (Hulen v. Stuart, 191 Cal. 562, 568 [ 217 Pac. 750 ].)

The third question must be answered in the negative. Though it is the better practice to require by the judgment that the vendee endorse the stock certificates in his possession, no prejudice resulted to the defendants in the present case, for the reason that it actually appears that the stock certificates properly endorsed have been deposited with the clerk of the superior court. The failure of the judgment to require plaintiff to pay a tax or transfer charge is entirely immaterial, since the agreement upon defendants ’ part provided for the .payment of a specific sum of money and there is no provision in the agreement requiring plaintiff as a condition precedent to pay either of the suggested charges.

The final question must also be answered in the negative. Not alone has defendant H. A. Brown failed to show wherein she was prejudiced by the amendment allowed by the trial judge, but it was the duty of the trial court to permit an amendment to the complaint to conform to the proof offered by plaintiff at the trial, when such amendment, as in the present case, was not prejudicial to defendants’ interest.

For the foregoing reasons the judgment is affirmed.

Wood, Acting P. J., concurred.