#### Davis *v.*Willis.

*(Supreme Court, General Term, Fourth Department.*

July 1, 1890.)

1. Vendor and Vendee—Rescission oe Contract—Rights of Vendor.

A contract for the sale of land was rescinded on the vendee’s default at his request, and it was orally agreed between him and the vendor that he should retain possession of the land a few months longer, cut the hay on the premises, and feed it to the vendor’s cows. *Held,*that the rescission of the contract discharged the vendee’s equitable right in the land, and constituted him the vendor’s servant in cutting and feeding the hay, and that his subsequent assignment of the contract of sale to a third person was ineffectual tb pass title to the hay as against the vendor.

2. Trover and Conversion—Evidence.

In an action by the vendee’s assignee against the vendor for the conversion of the hay, a written statement by the vendee that an order drawn by him in the vendor’s favor after the oral rescission of the contract was intended to be applied on the contract is inadmissible, as it is but an unverified declaration by the vendee, not binding on the vendor.

3. Appeal—Review—Matters not Apparent on Record.

Questions of fact will hot be reviewed by the general term where the appeal-book fails to show that it contains all the evidence.

Appeal from circuit court.

Action by Edward J. Davis against Warren *G.*Willis for the conversion, of a quantity of hay. There was a verdict in plaintiff’s favor, and defendant-appeals.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

*Warren G. Willis, pro se. James R. Baumes,*for respondent.

Martin, J.

This was an action to recover damages for the conversion of a quantity of hay to which the plaintiff claimed ownership. Whether the title to this hay was in the plaintiff or whether it was in the defendant at the-commencement of the action was the question chiefly litigated. The legal title to the premises upon which it was cut was in the defendant. He had, however, by contract under seal, agreed to sell them to one Vanderhule, and given him the right of possession. The hay grew on the premises while Vanderhule was in possession under that contract. The plaintiff claimed title under and by virtue of an assignment of the contract to him by Vanderhule. The defendant claimed title under a contract alleged and proved to have been made between the defendant and Vanderhule previous to Vanderhule’s assignment to. the plaintiff, whereby Vanderhule agreed to regard the contract as rescinded and void, and to surrender up the premises to the defendant, and to cut the hay and feed it the cows on the premises for the defendant. Upon the question of title, the jury found for the plaintiff.

As the appeal-book in this case fails to show that it contains all the evidence, the questions of fact will not be reviewed by this court, even if they were otherwise reviewable here. *Averill*v. *Hurd,*2 N. Y. Supp. 166; *Mullenhoff v. Sherer,*1 N. Y. Supp. 759; *Wellington*v. *Improvement Co.,*5 N. Y. Supp. 587; *Porter*v. *Smith,*107 N. Y. 531, 14 N. E. Rep. 446.

The only questions we are required to consider on this appeal arise upon the exceptions of the appellant taken on the trial. On the trial the defendant requested the court to charge “that if the minds of Willis and Vanderhule met in July, 1887, upon a paroi agreement to abandon and declare the contract void, such an agreement was valid, and operated at that time to rescind the contract;” also, “if there was a paroi agreement to rescind and abandon the written contract, then nothing that the parties afterwards did, as shown by the evidence, would have the effect to waive the same.” The court declined *884so to charge. The court charged as follows: “Now, gentlemen, if this was only an agreement to rescind this contract, and not consummated or carried out by their actually entering upon the new agreement, which it is claimed was made there, then it was an executory agreement, and was void, and the plaintiff could recover. ” This portion of the charge and the refusals to charge as requested were excepted to by the defendant. We think these exceptions were well taken. As we have already seen, the defendant’s title depends upon an agreement made between himself and Yanderhule, who was in default in not having performed the contract upon his part. The evidence discloses that Yanderhule, while thus in default, came to the defendant, and stated to him that he could not keep the farm; that he could not pay for it; that it was then and there agreed between the parties that the contract should be declared forfeited, canceled, and void, and that the farm should be the defendant’s ; that Yanderhule should cut the hay on the premises, and feed to the cows until March, and pay the interest on the purchase money until that time. The evidence tended to show that this new agreement was based on a good consideration, and accepted by the parties in satisfaction of their obligations under the former contract; that that contract was rescinded by mutual consent of both parties; that it was agreed that the defendant should be restored to the legal rights which he possessed before the contract was made; and that it was also agreed that the grass should be cut by Yanderhule for the defendant, and fed to the cattle on the premises. If this contract was rescinded by the mutual and voluntary consent of both parties, and without fault on the part of the defendant, he must be deemed to be thereby restored to the same condition as to the title of the premises and grass thereon in which he would have stood if no contract had been made. *Battle*v. *Bank,*3 N.Y. 88, 91; *Graves*v. *White,*87 N.Y. 463. The new agreement, even if not performed, having been founded on a good consideration, was a satisfaction if accepted as such. *McCreery*v. *Day,*23 N. E. Rep. 198; *Kromer*v. *Heim,*75 N. Y. 574. We think the effect of the agreement as testified to by the defendant and his witnesses was to rescind the contract, thereby discharging any equitable right which Yanderhule had in the premises, and constituting him the defendant’s debtor for the interest on the purchase price until the following March, and making him the defendant’s servant in cutting and feeding out the hay cut on the premises. If such was the agreement the defendant became the owner of the hay in question, and was entitled to the instructions asked for. It was, we think, error to decline to charge as requested, and to charge that such an agreement was void if not consummated or carried out by actually entering upon it.

The court also erred in admitting in evidence the written statement signed by Yanderhule to the effect that an order given to the defendant by him was to apply on the contract between them dated February 22, 1886. It was but the unverified declaration of Yanderhule, and was not evidence against the defendant. The exception to the reception of that evidence was valid. There are several other rulings which it is claimed were erroneous, but as the judgment must be reversed for the errors already pointed out it is unnecessary to examine the other exceptions in the case. Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.