This is an appeal from the judgment. The action is for an accounting and one-half of the profits earned in a joint venture of plaintiff and defendant.

The answer in addition to a general and special denial alleges an affirmative defense of estoppel in that plaintiff *730 had accepted payment of a certain sum in full settlement, also that the contract had been fully performed by defendant.

The facts as recited by appellant are as follows:

There is no evidence in the record to establish a novation either directly or indirectly. The only evidence that suggests a novation is the testimony of defendant. In this connection defendant testified:

There is no testimony that plaintiff replied to the remark; there is no evidence of any conversation on the subject. And plaintiff denied that the remark was made.

As appellant correctly points out, “the remark made by defendant was neither an offer, nor a contract, and hence not a novation. A novation must have all the elements of an original contract. The law of novation is codified and its interpretation is clear.

“ ‘Novation is the substitution of a new obligation for an existing one.’ (Civil Code, sec. 1530.)

“ ‘Novation is made: (1) By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation. ...” (Civil Code, sec. 1531.)

“ ‘Novation is made by contract and is subject to all the rules concerning contracts in general.’ (Civil Code, sec. 1532.)

“ ‘Whether a new agreement amounts to a novation is always a question of intention; and intention on the part of all parties that such agreement should constitute a novation must clearly appear. ’ ” (20 Cal.Jur. 249; Douillard v. Woodd, 20 Cal.2d 665 [ 128 P.2d 6 ]; Columbia Casualty Co. v. Lewis, *732 14 Cal.App.2d 64 [ 57 P.2d 1010 ]; Bank of America v. Pacific Ready-Cut Homes, 122 Cal.App. 554 [ 10 P.2d 478 ].)

The business relations between plaintiff and defendant had their beginning in the following manner as related by plaintiff and conceded by defendant. Plaintiff testified:

When the transaction was completed and when plaintiff sought an accounting, the result was as above outlined. Plaintiff accepted the check as a matter of right and not as the beneficiary of defendant’s magnanimity. In no sense did the acceptance of the check by plaintiff indicate an intent to *733 waive the further right to an honest accounting and an equal share of the profits of the transaction.

As above noted, there is no evidence to support the court’s finding and conclusion as to a novation.

The court also failed to find on other material issues as contended by appellant. For example, plaintiff’s action was for an accounting and the findings contain no reference to this important issue. And findings were not waived. “It has been repeatedly affirmed that where a court renders a judgment without making findings upon all material issues of fact, the decision is against law, and constitutes ground for . . . reversal upon appeal, provided it appears that there was evidence introduced as to such issue and the evidence was sufficient to sustain a finding in favor of the party complaining.” (24 Cal.Jut. 940.)

“The failure to find on all material issues raised by the pleadings and evidence is ground for reversal, unless findings have been waived.” Parker v. Shell Oil Co. (1946), 29 Cal.2d 503, 512 [ 175 P.2d 838 ]; Fairchild v. Raines (1944), 24 Cal.2d 818, 830 [ 151 P.2d 260 ]; Dieterle v. Bekin, 143 Cal. 683 [ 77 P. 664 ],

Appellant’s exception to the finding that at the time the check was sent there was, “an honest dispute as to the way said profits should be divided” and its relation to the law of accord and satisfaction need not be considered although it should be noted it is not without merit. The burden to prove the accounting was on defendant.

For the foregoing reasons the judgment is reversed and the cause remanded for a new trial.

White, P. J., concurred.

Drapeau, J., did not participate herein.