Strychalski v. Mekus

• Decision Date: 05 November 1976
• Citation: 54 A.D.2d 1068,388 N.Y.S.2d 969
• Parties: John A. STRYCHALSKI and Maryann Strychalski, Respondents, v. Margaret A. MEKUS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 969

388 N.Y.S.2d 969

54 A.D.2d 1068

John A. STRYCHALSKI and Maryann Strychalski, Respondents, v. Margaret A. MEKUS, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 5, 1976.

Woodin & Carpenter, Bruce K. Carpenter, Jamestown, for appellant.

Edwin J. Kuzdale, Dunkirk, for respondents.

Before MOULE, J.P., and CARDAMONE, SIMONS, MAHONEY and DILLON, JJ.

MEMORANDUM:

Plaintiffs-respondents, John A. and Mary ann Strychalski, were granted summary judgment in their action to compel specific performance of a contract to convey real property owned by appellant, Margaret A. Mekus. We believe a fact issue has been raised requiring a trial.

It has been long recognized in New York that a parol discharge of a contract for the sale of land is valid (56 N.Y.Jur. Statute of Frauds, §§ 156, 157) and that the parties to a written contract may mutually agree to cancel and rescind it (Rodgers v. Rodgers, 235 N.Y. 408, 139 N.E. 557, mod. on rearg. on other grnds., 236 N.Y. 577, 142 N.E. 290; Schwartzreich v. Bauman-Basch, 231 N.Y. 196, 131 N.E. 887). Such an oral agreement cancelling a written contract must be clearly expressed (Frank Associates, Inc. v. John J. Ryan & Sons, Inc., 281 App.Div. 665, 117 N.Y.S.2d 406; Metallograph Corp. v. Arma Eng. Co., 205 App.Div. 100, 104, 199 N.Y.S. 347, 349, app. dsmd. 236 N.Y. 675, 142 N.E. 331) and have the same elements of mutual consent and consideration as are necessary for the formation of other informal contracts (17 Am.Jur.2d, Contracts, § 492, pp. 964--965).

Thus, while a new agreement cancelling a written contract requires some consideration (Nassoiy v. Tomlinson, 148 N.Y. 326, 42 N.E. 715; Coe v. Hobby, 72 N.Y. 141; Holden v. Putnam F. Ins. Co., 46 N.Y. 1; Smith v. Kerr, 33 Hun 567, affd. 108 N.Y. 31; 10 N.Y.Jur. Contracts, § 419), the mutual consent of the parties to rescind is ordinarily all the consideration required (McCreery v. Day, 119 N.Y. 1, 23 N.E. 198), since the discharge of one party from the obligation to perform further is sufficient consideration for the discharge of the other party from its obligation to perform (McCreery v. Day, supra; Rodgers v. Rodgers, supra; American Broadcasting--Paramount Theatres, Inc. v. American Manufacturers Mut. Ins. Co., 42 Misc.2d 939, 249 N.Y.S.2d 481, affd. 20 A.D.2d 890, 251 N.Y.S.2d 906). The rationale is that upon cancellation of the contract by mutual assent, each party thereby reciprocally receives from the other a renunciation and surrender of the rights, benefits and advantages which the contract conferred and a release and discharge from the burdens and obligations it imposed (McCreery v. Day, supra; 10 N.Y.Jur. Contracts, §§ 419, 420, 9 N.Y.Jur. Contracts, § 86).

An executory contract which contains a provision that it cannot be cancelled orally may not be terminated effectively unless the cancellation or discharge is in writing and signed by the party against whom the cancellation is sought to be enforced (General Obligations Law, § 15--301). Here, however, the contract of sale did not contain a clause requiring that cancellation be in writing or prohibiting oral termination.

Thus, a written conract may be terminated, although it may not be modified, by a subsequent oral agreement or by an implied agreement revealed from the conduct of the parties and the surrounding circumstances (Schwartzreich v. Bauman-Basch, supra; 10 N.Y.Jur. Contracts, § 420). The record reveals that after the appellant, Mrs. Mekus, entered into a written contract to sell her home she changed her mind. Appellant testified at an examination before trial that respondents verbally agreed to cancel the contract on February 14, 1975. Respondents concede that they went to Mrs. Mekus' house on February 14th and that she told them she wanted her house back. The respondents claim, however, that in response to her request to be released they told her that they would think about it, but that first they would have to consult their lawyer. Later on the same day, respondents telephoned Mrs. Mekus and claim that they told her they were going through with the deal.

Where the defense to an action for specific performance of a contract to convey real property is based upon a claim of mutual cancellation of the contract sought to be enforced, as it is here, the burden is on the party asserting it to establish such defense (Kroll v. Zimmerman, Sup., 88...