Foss-Hughes Co. v. Norman

• Decision Date: 12 February 1923
• Citation: 32 Del. 108,119 A. 854
• Court: Delaware Superior Court
• Parties: FOSS-HUGHES COMPANY, a corporation existing under the laws of the State of Pennsylvania, d. b. a., v. FREDERICK B. NORMAN, p. b. r

119 A. 854

32 Del. 108

FOSS-HUGHES COMPANY, a corporation existing under the laws of the State of Pennsylvania, d. b. a., v. FREDERICK B. NORMAN, p. b. r

Superior Court of Delaware, New Castle County

February 12, 1923

Superior Court for New Castle County, January Term, 1923.

No 207, September Term, 1922.

The Foss-Hughes Company on March 11, 1920, agreed to sell Norman a Pierce-Arrow Sedan motor vehicle for the sum of $ 9,100, on which a deposit of $ 1,000 was made by Norman. The purchase not being completed by the buyer and a considerable time having elapsed, The Foss-Hughes Company on September 11 1920, by letter to Norman, stated that it was their understanding--

"that it will be satisfactory to you for us to retain the present deposit of $ 1,000 until such time as you are ready to purchase from us a Pierce-Arrow car, at which time this deposit will be applied toward the purchase price of the car and that in addition to this, should we be put to any expense in reselling the Sedan we now have here ordered for you, you will pay us for the cost of any changes that may be necessary. * * * If this arrangement agreed with your understanding, we will be glad to have your acknowledgment."

On the following day (September 17, 1920) Norman wrote the Foss-Hughes Company:

"We have your letter of September 16th in reference to the one thousand ($ 1,000) dollars deposit you have from the writer covering one of your cars. It is entirely satisfactory to the writer, as outlined in your letter, and we trust conditions will right themselves in the near future so that I can take delivery of one of your cars. Thanking you for the courtesies extended to me, for I do want you to know that I appreciate the attitude your company has taken toward me in this matter, I am," etc.

Here the matter rested until March 29, 1921, when Norman again wrote the Foss-Hughes Company as follows:

"Owing to the depression we have had during the past few months the writer has found it necessary to cancel order for one of your cars and would thank you for return of the deposit. Normal business conditions will immediately interest me again in your product, but at this time actual cash is necessary to promote business interests in Wilmington."

The Foss-Hughes Company refused to return the deposit and suit therefor was instituted by Norman; the first count of the declaration setting out the above correspondence. In the declaration the common counts were also added. The defendant demurred to the first count in the declaration and the case came before this court upon such demurrer.

The demurrer sustained.

Clarence A. Southerland for defendant below, appellant.

George W. Lilly for plaintiff below, respondent.

RICHARDS and RODNEY, J. J., sitting.

OPINION

RODNEY, J.

It is contended by the plaintiff that his previously existing contract to purchase the motor vehicle was rescinded by the subsequent correspondence; that thereafter the Foss-Hughes Company simply retained the deposit, theretofore made, to be applied on account of the purchase price of a motor vehicle in case he, Norman, subsequently decided to purchase one, but that there was no liability upon him to make such purchase. The plaintiff contends, in short, that the pre-existing contract was rescinded by mutual consent as evidenced by the correspondence and that no new valid contract was entered into. We cannot agree with this contention.

It is elementary that where mutual assent is invoked as the ground for rescission of a contract that all the parties must consent and there must be a meeting of their minds thereto. The defendant denies assent to such rescission and there is nothing before us but the correspondence from which to determine either a rescission by mutual consent or a rescission by operation of law. We find nothing in the correspondence indicating any mutual consent to the rescission of the contract.

Is the contract then rescinded by operation of law? While it is true that if parties to a contract make a new and independent agreement concerning the same matter and the terms of the latter are so inconsistent with those of the former that they cannot stand together, the latter may be construed to discharge the former, yet it is also true that though they may differ in terms, if their legal effect is the same the second is merely a ratification of the first and the two must be construed together. Rhoades v. Chesapeake, etc., R. Co., 49 W.Va. 494, 39 S.E. 209, 55 L. R. A. 170, 87 Am. St. Rep. 826.

Where a new contract is consistent with the continuance of the former one and only provides a new mode of discharging such former one, it has no effect unless or until it is performed. McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574.

In 3 Elliott on Contracts, § 1866, it is set out:

"Modifications do not abrogate the original contract entirely, but, on the contrary, the terms of the old contract are still to be followed so far as not changed or inconsistent with the new terms and the governing contract may be said to be composed of the new terms and...