Hyperlawhypertext legal database De Klyn v. Silver Lake Ice Co. 58 N.Y. Super. Ct. 501

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De Klyn v. Silver Lake Ice Co.

58 N.Y. Super. Ct. 501 26 Jones & S. 501 Court N.Y. Super. Ct. Decision date 1891-01-05 English

Decision Majority — By the Court.—Freedman, J. · Concurring — Ingraham, J.

Contents

Majority

p. 501
CHARLES B. De KLYN, Appellant v. SILVER LAKE ICE COMPANY, Respondent.

Headnote

Rescission of contract—Reinstatement—Letters excluded on the trial should he printed.
In this ease it was established on the trial, that the contract had been rescinded, by consent of both parties, by letters passing between them March 5th and 15th, 1888. Held, that no action can be maintained upon the contract after such rescission by either party thereto. That proof of deliveries of ice, that was the subject of the contract, by the defendant to plaintiff after .such rescission, could not have the effect of reinstating the contract between'the parties.
Certain letters were offered in evidence on the trial by the plaintiff, and were excluded, and exception duly taken. These letters were not printed in the case, and consequently it cannot be held that their exclusion on the ground of immateriality constituted error.
Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
Decided January 5, 1891.
Appeal from judgment entered upon a dismissal of the complaint at the trial.
Morrison & Kennedy, attorneys, and L, J. and H, Morrison of counsel, for appellant.
Putnam & Slocum, attorneys, and Wallace Macfarlane of counsel, for respondent.

The evidence given at the trial established that the contract upon

Concurrence

p. 502
which this action was brought, had been rescinded by the letters of March 5 th and March 15th, and consequently no action can be maintained upon it by either party. The claim of the plaintiff that the letter of March 5th should be treated as a mere brutum fulmen cannot be sustained. There having been a rescission, proof of deliveries of ice subsequent to March 17th could not have the effect of reinstating the contract. Such deliveries may have been made at market rates as proposed by the letter of March 5th, but it was not necessary to determine the precise point. The letters excluded are not printed in the case and consequently it cannot be held that their exclusion on the ground of immateriality constituted error. Upon the whole case no sufficient reason appears for disturbing the judgment.

The judgment should be affirmed with costs.

Sedgwick, Ch. J., concurred.

I concur in the result.