Sherwin-Williams Co. v. Glenn Paint & Wall Paper Co., 6 Ohio Law. Abs. 101

Sherwin-Williams Co. v. Glenn Paint & Wall Paper Co.

6 Ohio Law. Abs. 101 | Ohio Ct. App. | 1927

OPINION OF COURT.

The following is taken verbatim, from the opinion.

ROBERTS, J.

Under this situation, it is claimed by the *102defendants in error that there was, in law, a novation by which, by reason of the mutual conduct of the transacting parties, The Sher-win-Williams Company released its previously existing debtor, the partnership, and the corporation became the debtor; that this was, in effect, mutually agreed to by all. of the three parties.

The proposition is recognized in law that there may be an assumption of an indebtedness by a new party without a release of the old party. This does not state a novation, but there may be an agreement to release the previous debtor and look anly to the subsequent debtor. This is the real dispute in this case. Was there a novation and a release of the partnership ?

It is held, in the case of Insurance Company v. Hoyer, 66 OS. 344, that the conrtact of novation need not be by any express agreement but may be implied from the facts and circumstances attending the transaction and the conduct of the parties thereafter.

Taking into consideration all of the testimony in the case, with such deductions as may properly be made therefrom, we are inclined to think that there was considerable reason for the determination of the Common Pleas, in favor of the defendant in error, that there was a novation and the partnership was released.

This court, of course, approaches this piop-osition on the weight of the evidence in a manner somewhat different frdm the way necessarily considered by the Common Pleas Court, that is to say, that court determines the weight of the evidence. This court may only say that determination was wrong, can only reverse when it can be said that it is against the manifest or decided weight of the evidence, and that it is a conclusion which this court is unable to reach, and does find that there was no prejudicial error in this case and the judgment of the Court of Common Pleas is affirmed.