The action was brought to recover the balance due upon a sale of ■ goods by the Midland Steel Company, of which the plaintiff was assignee, to the defendant. From the judgment entered upon the report of the referee dismissing the complaint this appeal is taken.
It appears' that in the early part of the year 1896, the defendant, who was doing business under the name of Louis Mon jo, Jr., *534& Co., ordered from the Midland Steel Company a carload of steel, at the price of $759.32, upon a credit of sixty days. There was considerable delay in the shipment of the goods, and they were not finally received until about the 15th of May, 1896. Before that time the defehdant had sold to the National Wrought Steel Manufacturing Company, and that company had taken possession of all his property and business, and when this carload of steel reached the place to-which it was consigned, it was delivered to the National Wrought Steel Manufacturing Company.
On the twenty-ninth-of July that company delivered to the Midland Steel Company, the seller gf the goods, its promissory note for the amount due upon the carload of steel. The note was not paid when due but was renewed. When the renewed note became due, that was not paid, but after some negotiations the Midland Steel Company drew its draft for the amount of the note,, with interest, upon the Wrought Steel Company, which was accepted by it, and a payment of $425 was made by the acceptor upon the draft. The remainder was not paid* and it is to recover that remainder that this action is brought.
The foregoing facts are not disputed. It is conceded that the claim of the Midland Steel Company was assigned to the plaintiff before the bringing of this action. It is claimed by the defendant that upon his sale to the Wrought Steel Company of his property and business, that company agreed to pay for this carload of steel when it, was received; that the Midland Steel Company was advised of the purchase by the National Wrought Steel Manufacturing Company of the defendant’s plant and businéss and of the general relations between the Wrought Steel Company and the defendant, and- that, knowing these relations, it accepted the Wrought Steel Company as its debtor under such circumstances as to warrant the conclusion that it consented to the agreement between that company and the -defendant, by which the Wrought' Steel Company agreed to pay for this carload of steel, and that by reason of its assent to-that agreement, a novation took place, as a result of which the defendant was discharged and the. Wrought Steel Company became the debtor of the Midland Company.
There was evidence which warranted the finding that the Wrought Steel Company had agreed with Mon jo to pay the bill for this car*535load of steel, and there was also evidence that this agreement was ¡known to the Midland Steel Company although there is no direct •evidence that the precise terms of the agreement were made known to it. It is undisputed, however, that the Midland Steel Company was •advised of this agreement between Monjo and the Wrought Steel -Company, and the facts shown raise an inference that it .accepted the situation, and when the bill for the steel became due received the note of the Wrought Steel Company in place of the obligation of Montjo.
It is clear, too, that from the time that note was received until there was a final failure of the Wrought Steel Company to pay the balance due upon the draft which had been substituted for the note, the Midland Steel Company dealt with the Wrought Steel Company precisely as though it were liable primarily for the steel, and without reference to Monjo.
From these facts it is fair to infer, as seems to have been inferred by the referee, that the Midland Steel Company assented to the agreement by which the Wrdught Steel Company assumed' to pay for this carload of steel, and accepted that company as its debtor in the place of Monjo, to whom the steel was originally sold. These facts are all that are necessary to establish a novation.
To prove the assent of the creditor it is not necessary that express "knowledge of the transaction be brought home to him, but that assent may be proved by circumstantial evidence precisely as other facts may be similarly proved. (16 Am. & Eng. Ency. of Law, 879, 880, 881; Hotchin v. Secor, 8 Mich. 494; Begester v. Dodge, 81 How. Pr. 107, 114.)
There was sufficient evidence, therefore, to warrant the conclusion reached by the referee. It is quite true that these facts were not found by him in his report, but as the evidence would have warranted the finding of them, the court will infer their existence, although not found in the report, to sustain the judgment. (RochChester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209, 213.)
It is claimed by the plaintiff that the referee erred in opening the case after the evidence was closed to permit the defendant to give material evidence bearing upon this question of novation. Whether it was proper or not to open the case was a matter within *536the discretion of the referee, and that discretion will not be reversed! unless from the facts it is made to appear that it has been abused. We cannot infer any abuse from what is shown in this case. Tim plaintiff made no. application for an adjournment after the new ■evidence was received to enable him to meet the facts which then appeared. It is to be' assumed, therefore, that he did not deem it necessary to make such proof, and he cannot now say that he had no opportunity to do so. The evidence admitted was clearly coim petent and relevant, and it was equally within the discretion of the referee to receive it if he saw fit.
We can find no error in the judgment, and for that reason it is.
affirmed, with costs to the respondent.
"Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred. O’Brien, J., dissented. '