139 N.E. 557 | NY | 1923
The action was brought against defendant's testator, and after his death was continued against his executors, upon an agreement, the terms of which are set forth in the opinion delivered on a former appeal to this court. (Rodgers v. Rodgers,
We are entirely satisfied with the disposition made of the appeal at the Appellate Division, except as to the third defense, and as to that we are of the opinion facts are set forth which constitute a defense, and for that reason the demurrer should have been overruled.
This defense alleges, upon information and belief, that after the making of the contract alleged in the complaint, and on or about the first day of August, 1909, and before any of the breaches thereof set forth in the complaint, it was mutually agreed by and between the plaintiff and said James M. Rodgers and said John C. Rodgers that the said contract should be waived, abandoned and rescinded, and the same was then waived, abandoned and rescinded accordingly.
It is urged that this defense is insufficient because it does not allege there was any consideration for the waiving, abandonment or rescission, but this overlooks the fact that the promise of one to forego is a consideration of the other to forego. No reason can be suggested why parties to a contract, before there is any breach and so long as neither party has completely performed or been discharged from his obligation, may not mutually agree to cancel and rescind the contract altogether. (Schwartzreich v. Bauman-Basch, Inc.,
The orders appealed from should be modified so as to overrule the demurrer to the third defense and as so modified affirmed, without costs. The first, second and sixth questions certified should be answered in the affirmative, the third in the negative, and the fourth and fifth not answered.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur.
Ordered accordingly. *411