Facendini v. Hillman

• Decision Date: 08 November 1927
• Docket Number: No. 19982.,19982.
• Parties: FACENDINI v. HILLMAN.
• Court: Missouri Court of Appeals

298 S.W. 1073

FACENDINI v. HILLMAN.

No. 19982.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Rehearing Denied November 22, 1927.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Joe Facendini against L. Hillman. Judgment for plaintiff, and defendant appeals. Affirmed.

Hill & England, of St. Louis, for appellant.

Rothwell & McNatt, of Clayton, for respondent.

BENNICK, C.

This is an action instituted by plaintiff to recover a sum of money alleged to be due him from defendant. A jury was waived, and the cause was tried before the court, resulting in a finding and judgment for plaintiff in the total sum of $940.50, from which defendant has duly appealed.

The petition alleged that there had been a sale by defendant to plaintiff of an oil filling station and automobile repair shop for the consideration of $3,135, of which amount plaintiff had paid to defendant the sum of $900; that on or about September 17, 1925, plaintiff learned of the falsity of certain representations of defendant which had induced him to agree to purchase the property; that he offered to rescind the sale and return the property to defendant; that defendant agreed to the rescission of the contract, and further agreed to return the sum of $900 to plaintiff; and that defendant thereupon took and retained possession of the property, but failed, neglected, and refused to pay the plaintiff the sum of $900, though demand had been made upon him so to do.

Defendant, in his answer, admitted the original contract of sale, and the payment to him by plaintiff of the sum of $900, but denied each and every other allegation in plaintiff's petition contained.

There was no dispute between the parties as to the terms of the original contract of sale, nor as to the payment to defendant by plaintiff of the sum of $900, which occurred on September 15, 1925. It appears that plaintiff took over the property on such date, and thereafter continued in possession thereof until about the 1st of the following October, when the transaction that formed the basis of this controversy occurred.

There was substantial evidence that plaintiff, having become dissatisfied with his bargain for reasons which are not material to the issues here involved, requested a rescission of the contract; that defendant agreed thereto, and as a part of said agreement promised to repay the plaintiff the sum of $900; and that defendant thereupon retook possession of the property, continued the operation thereof, retained the receipts, and, on a subsequent sale of the property, signed the bill of sale thereto.

Defendant argues that the evidence wholly failed to establish plaintiff's right to recover under the issues made by the pleadings, and that, consequently, the demurrer to the evidence should have been sustained. The burden of defendant's contention is that plaintiff, having elected to proceed upon the basis of a rescinded contract, was required to show by conclusive evidence that both parties thereto had been placed in statu quo, and that, having failed on this issue, the judgment may not stand. This suggestion grows out of the fact that, upon the redelivery of the property to defendant by plaintiff, the latter retained whatever profits he had made from the business during the short period of time that he had operated it.

It is well agreed that the parties to a contract may lawfully rescind, abrogate, or terminate it. Rogers v. Fremder (Mo. Sup.) 261 S. W. 105; Stoedter v. Turner (Mo. App.) 237 S. W. 141; Sheetz v. Price, 154 Mo. App. 574, 136 S. W. 733; Conroy Piano Co. v. Pesch (Mo. App.) 279 S. W. 226; 13 C. J. 600 et seq.

So long as the contract is wholly executory, it may be set aside by mutual agreement, and no other consideration is necessary. However, the surrender of a valuable right under a contract is ineffectual, unless supported by a valuable consideration. Stoedter v. Turner, supra; Davis v. Culmer (Mo. App.) 295 S. W. 803; 13 C. J. 602.

Of course, the particular contract involved in the case at bar had been fully executed by defendant, in that he had surrendered the possession of the property to plaintiff; and the obligation resting upon plaintiff thereunder had been partially...