Tice v. Zinsser

By the indorsement put upon the agreement in October, 1871, it was rescinded and canceled, and as this indorsement contained no conditions the parties stood towards each other as if no agreement had been made between them.

The plaintiff could recover nothing for any improvements he had put upon the property because there was no undertaking to pay for them, and the defendant could not retain the money that had been paid on account of the property, in expectation of a fulfillment of the contract and a conveyance of the property for the reason that he canceled the agreement and accepted a surrender of the premises unconditionally and without any stipulation for compensation. (Gillet v. Maynard, 5 John., 86; Battle v. Rochester City Bank, 3 N. Y., 88.)

It is claimed on the part of the defendant, that as the plaintiff could not have recovered back the money he had paid on the agreement before the indorsement thereon of the contract of rescission, he cannot now recover back the money paid, because he has surrendered his right to do so. We cannot subscribe to this propo*368sitian. It was entirely competent for the parties to make a new contract to surrender and cancel the original agreement and they did so, and that left them in the condition in which they stood before the agreement was made. So standing the defendant was-left no reason for retaining the money he had received. Before he rescinded the agreement, he could stand upon that and declare his readiness to carry it out, and the plaintiff would have no refuge but in fulfillment. He had paid his money in pursuance of an agreement which.called for it and which could be executed, and his rights, liabilities and remedies were all to be sought for within its provisions, and they called for the money he had paid and other money beside. But the defendant voluntarily • surrendered all these rights, and thus gave up his right to hold the money under the agreement.

These considerations lead to the conclusion' that the judgment appealed from must be reversed.

The order vacating the verdict must also be set aside and the plaintiff must have judgment upon his verdict with costs.

Judgment and order setting aside verdict and dismissing plaintiff’s complaint reversed, and judgment ordered for the plaintiff on the verdict.