Opinion
June 24, 1909.
H.W. Coley, for the appellant.
E.L. Hunt, for the respondents.
In the contract itself there seems to have been no express provision requiring the plaintiff to purchase the three cars. That was expressly stipulated, however, before the contract was signed, and the $750 seems to have been sent to the defendant by the plaintiff before the signing of the contract. This agreement, however, seems to be treated in the correspondence and by the conduct of the parties as part of the agency contract. It undoubtedly is a part of the contract and was not included in the written contract because of the fact that the money had been sent before the written contract was signed.
The plaintiff has no right to recover these moneys paid by reason of any breach of contract on the part of the defendant. There was no implied promise to return it. The express promise claimed by plaintiff to have been made with the agent of the defendant and before the making of the contract will be deemed to have been superseded by the contract itself. The contract itself provides: "This contract supersedes all contracts of prior date." It cannot be material whether or not the defendant was injured by the failure to furnish shipping directions. The request for those directions was reasonable, and the defendant had no right to ship the cars to Oneida after the failure of the plaintiff to give any directions as asked for.
The defendant's difficulty, however, lies in its cancellation of this contract. This cancellation was brought to the attention of the son, who was one of the firm. It did not come to the attention of the father, however, until in October. The defendant had done all that was required of it to cancel the contract as of August seventeenth. In Whiting v. Derr ( 121 App. Div. 239) the rule is stated: "It is well settled in principle and by authority that where there has been a total failure of consideration, or where a contract has been abandoned, or has been rescinded, an action will lie for money had and received to recover back any money paid by either of the contracting parties to the other in furtherance of the contract." The authorities cited in that case seem to sustain the proposition, and under this authority the plaintiff would seem to have the right to recover the $500 paid.
Nor can the defendant escape the effect of its rescission by charging the plaintiff now with the full $2,500 for his car. As an agent he got twenty per cent discount. There was no promise on his part to pay any additional sum if the agency was thereafter canceled. The right to charge the additional $500 which is claimed to be an offset to the claim of the $500 paid under the contract and for which this suit is brought, was not stipulated for in the contract.
I recommend, therefore, that the judgment be affirmed, with costs.
Judgment unanimously affirmed, with costs.