Josloff v. Falbourn

• Decision Date: 15 January 1924
• Citation: 32 Del. 433,125 A. 349
• Court: United States State Supreme Court of Delaware
• Parties: LOUIS JOSLOFF, d. b. a., v. MAURICE FALBOURN, p. b. r

125 A. 349

32 Del. 433

LOUIS JOSLOFF, d. b. a., v. MAURICE FALBOURN, p. b. r

Supreme Court of Delaware

January 15, 1924

Supreme Court, January Term, 1924. Error to the Superior Court, New Castle County.

The judgment reversed.

Aaron Finger for plaintiff in error.

Philip L. Garrett for defendant in error.

WOLCOTT CHANCELLOR, PENNEWILL, C. J., RICE, HARRINGTON, RICHARDS and RODNEY, J. J., sitting.

OPINION

PENNEWILL, C. J.

On April 14, 1920, Maurice Falbourn, plaintiff below, purchased from Louis Josloff, defendant below, a certain quantity of plate glass for which he agreed to pay the sum of three hundred and ninety-five dollars, the delivery of the glass to be made when directed by Falbourn. At the time of making the contract Falbourn made a payment of one hundred dollars on account, and at the same time a memorandum of the agreement was reduced to writing and signed, by both parties. Subsequently, and before Falbourn was ready to have the glass delivered he so changed his plans that glass of a smaller size was required than that he contracted for. Falbourn testified that he went to Josloff and told him he could not use the glass he had ordered because his plans required a smaller size, and that Josloff said, "he would take care of that" (meaning that he would cut the glass to the required size). Falbourn further testified that Josloff refused to let him have the smaller glass at a less sum than the contract price, and also refused to return the one hundred dollars he had paid. Thereupon Falbourn bought the glass he needed from another party at a price less than that he had agreed to pay Josloff, and later brought suit in the Court below to recover the one hundred dollars he had paid.

The testimony of Josloff does not differ essentially from that of Falbourn in any material point. He testified that when Falbourn came to him and said he could not use the glass he ordered because a smaller size was required, he told him he would cut the glass to the required size and give him the pieces that were left. Josloff further testified that there was a drop of from twenty-five to thirty per cent. in the price of glass between the time when the contract was made and the time he was informed by Falbourn that he could not use the glass he had ordered, and also, that he had the glass in stock that was contracted for and was ready at any time to deliver it. This was denied by Falborn.

Josloff produced a witness (Samuel S. Wheatty) to corroborate his testimony that there was a decline in the price of glass after the contract between the parties was made, but the Court declined to admit the testimony.

At the close of the testimony the defendant below asked the Court to instruct the jury to return a verdict in favor of the defendant, which was refused.

It is claimed by the plaintiff in error that the Court below erred:

(1) In declining to instruct the jury to return a verdict in favor of the defendant, and,

(2) In refusing to admit the testimony of the witness Samuel S Wheatty.

The case of the plaintiff in the Court below was based on the theory that the conduct of the parties subsequent to the making of the contract on April 14, 1920, showed that there was a cancellation or rescission of said contract.

It is well settled, that one of the parties to a contract cannot modify such contract or terminate it lawfully unless the other party assents thereto. To abrogate or modify a prior contract, it is necessary that the minds of the parties to the original contract should meet by offer and acceptance upon the terms of the new agreement. Mere negotiations consisting of unaccepted offers, cannot affect a prior contract.

To effect a rescission by subsequent mutual agreement, it is necessary...