Elwell v. McDonald

Judgment affirmed on opinion of court below.

The opinion of the Special Term was as follows:

The objection to the complaint raised by this demurrer is that there are two causes of action alleged, one for a rescission of the contract and another for a breach thereof by the defendants. It is plain, however, that there is no cause of action for a rescission of the contract. The complaint alleges the execution of a contract and certain acts of the defendants which, it is claimed, prevented the plaintiff’s assignor (a construction company) from fulfilling the contract, and the plaintiff asks for a judgment for the damages sustained by reason of the breaches on the part of the defendants which prevented the plaintiff’s assignee from completing the contract. It is alleged-that in consequence of certain specified breaches of the contract by the defendants the contract became rescinded, but just what the *522pleader intended by this allegation is not apparent. Certainly no distinct cause of action is based upon any rescission of the contract by the company, or any acceptance by it of an option to rescind the contract given to it by the acts of the defendants. No relief based upon such rescission is demanded. The complaint alleges one cause-of action for a breach by the defendants of the contract. Several acts, each of which in itself would constitute a breach of the contract, are alleged; and the complaint also alleges the various items of damage that the company sustained in consequence of the breach by the defendants of their obligation under the contract, and a sum of money is demanded as damages sustained by the plaintiff in consequence of the defendants’ failure to comply with the contract on their part. The demurrer, therefore, must be overruled and judgment ordered for plaintiff, with costs, with leave to the defendants, to answer upon payment of costs.