Bishop-Babcock-Becker Co. v. Keeley

SiebecKee, J. The only question raised is, Was there an agreement, consented to by the defendant, the Palace of Sweets Company, and the L. A. Becker Company, by which the debt of M. W. Eeeley on these notes was extinguished and the Palace of Sweets Company accepted as the obligor of the debt evidenced by the notes? The Palace of Sweets Company admittedly agreed with the defendant, M. W. Keeley, to assume this debt in consideration of the transfer of all the property of defendant to the company. It is not required that acceptance of the terms of novation be shown by express words, but it may be implied from the facts and circumstances of the transaction and the conduct of the parties in relation thereto. An examination of the evidence and the [549] conduct of tbe parties attending tbe transaction of novation bas satisfied us that tbe circuit court was fully justified in concluding that tbe L. A. Becker Company, plaintiff’s assignor and tbe owner of tbe notes in question when tbe Palace of Sweets Company bad been organized in March, 1910, consented to accept tbe Palace of Sweets Company as tbe obligor on these notes and thereby released tbe defendant from liability. We cannot say that tbe findings of tbe trial court are against tbe clear preponderance of tbe evidence. By the Court. — Tbe judgment appealed from is affirmed.