Kirtley v. C. G. Galbo Co.

De Courcy, J. The following material facts were expressly found by the trial judge or are necessarily implied in his general finding for the plaintiff. Prior to April 1, 1921, Kirtley bought and sold securities through the brokerage firm of William TL Fitzgerald and Company. On that date C. G. Galbo and Company (a partnership, but incorporated later in the month), purchased the office equipment and business of William R. Fitzgerald and Company, taking over the accounts of some of their customers, including that of Kirtley. Notice thereof was sent to the plaintiff; he called at the defendant’s office, learned that his cash margin was ample, and was urged by Galbo to continue his account with the defendant. He did so, and bought and sold securities through the defendant as broker; receiving daily confirmations of these transactions, and monthly statements of account. C. ’G. Galbo and Company requested no margin from the plaintiff, presumably because that taken over from Fitzgerald and Company was ample. The statement dated May 11, 1921, showed a balance due from the plaintiff of $1,044.58, and a list of securities which the defendant held for him. Some of these apparently were stocks which had been held for him by Fitzgerald and Company, and the others were securities bought by the defendant on the plaintiff’s orders. After receiving this statement Galbo was informed by the concern’s margin clerk that the account warranted the withdrawal of $500; and he signed a check to the plaintiff’s order for that amount. Later by direction of the plaintiff the defendant sold all the securities it was carrying for him, but refused to pay him the balance, $308.72. The court found for him in that amount. The only question argued by the defendant is whether the facts warranted a finding of novation; in other words, that the defendant had become liable to the plaintiff for the obligations of Fitzgerald and Company to him, so far as such obligations had not been modified by dealings between the plaintiff and the defendant. There was ample evidence that the defendant had assumed the obligations of Fitzgerald and Company, to the plaintiff, and that Kirtley had assented to the substitution of the defendant as his obligor. And, notwithstanding the statement of the plaintiff on cross-examination that he never actually released Fitzgerald, the judge was warranted in inferring from the conduct of the [183] parties, as he did, that the plaintiff impliedly released Fitzgerald and Company from all liability. The mutual consent of all the parties to the substitution and novation “may be established by circumstances showing such assent as well as by expressed words.” Williston on Contracts, § 1875. Griffin v. Cunningham, 183 Mass. 505, 508. Stowell v. Gram, 184 Mass. 562. New England Cabinet Works v. Morris, 226 Mass. 246, 252. The exceptions that deal with the judge’s rulings and with questions of evidence have not been argued by the defendant. As to these it is enough to say that no error is shown. Order dismissing report affirmed.