Opinion
Argued February 28, 1923
Decided April 17, 1923
Thomas F. Conway, Joseph A. Kellogg and Thomas E. O'Brien for appellant.
Joseph F. Murray and Harry A. Redmond for respondent.
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, 229 N.Y. 255. ) A demurrer was interposed to the complaint which was overruled at Special Term, but on appeal to the Appellate Division was sustained. ( Rodgers v. Rodgers, 186 App. Div. 77. ) On appeal to this court the order of the Appellate Division was reversed and the demurrer overruled. ( Rodgers v. Rodgers, supra.) Leave was given to the defendants, however, to withdraw their demurrer and interpose an answer, which they did, setting up certain defenses and a counterclaim. The plaintiff demurred to the first, second and third defenses, as well as to the counterclaim. These demurrers were sustained at the Special Term and its order affirmed by the Appellate Division, with leave to appeal to this court, certifying certain questions.
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the plaintiff and said James M. Rodgers and said John C. Rodgers that the said contract should be waived, abandoned and rescinded, and the same was then waived, abandoned and rescinded accordingly.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., 231 N.Y. 196, 205; Williston on Contracts, secs. 1826-1829; Rollins v. Marsh, 128 Mass. 116, 120.)
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.