The defendant signed a contract to buy certain lots in block 205 in Brentwood Park. Block 205 was not in the original Brentwood Park plan, but was in an addition subsequently added called Brentwood Park Addition although the defendant had not seen a plot and was not familiar with the location of the lots. The facts out of which this controversy arises are practically all in writing and are undisputed. On August 26, 1915, a written agreement was entered into between the Brentwood Reality Company by W. C. Sacks, its agent, and the defendant, Oliver E. Moses, whereby in consideration of the sum of $750.00, of which $10.00 was to be paid on the execution of the contract and $20.00 each month thereafter, the Brentwood Realty Company agreed to convey to the defendant "lots numbered 48-49 in block 205 in Brentwood Park at Brentwood, Suffolk County, Long Island, N. Y." Written at the bottom of the agreement was the following clause: "Mr. Moses agrees to visit property within sixty days and if dissatisfied all money paid to be refunded," and in the body of the agreement was a provision that "This instrument expresses the entire agreement between the parties hereto, and there are no independent, collateral or other agree In the copy of the contract on which the plain-ments, covenants, conditions or terms tiff company endorsed its acceptance the word whatsoever, either open or secret and "Addition was interlined before Brentwood undisclosed between the parties hereto." Park and subsequently the defendant disa-There were at the time two copies filled vowed the contract. In an action to enforce the contract, Held, that the defendant was not bound to carry out the contract as changed, and judgment should be entered for the defendant. Such contract further provided that the defendant should visit the property and if dissatisfied could revoke the contract. The defendant wrote that he was dissatisfied "without that" and would prefer not to visit the property on account of ill health, to which the plaintiff company answered that their agent would call on him in a few days, and adjust matters to his entire satisfaction. This they did not do. Held, that after two years delay the plaintiff could not insist upon this provision, and that the defendant was released. Parties to a written contract may modify or waive its terms by mutual consent which may be inferred from their actions. Rule for judgment for defendant n. o. v. C. P. October Term, 1918, No. 25. out, one of which was signed by both parties and sent by Mr. Sacks to the Company for approval, and the other was signed by Mr. Sacks and given to Mr. Moses. Thereupon Mr. Moses paid the $10.00 as provided by the agreement. Upon the receipt of the agreement by the Company a copy identical in its provisions was filled out by some one for it except that before the words "in Brentwood Park" was interlined the word "addition," with an endorsement of acceptance thereon, and on August 28, 1915, this was sent to Mr. Moses. On September 27, 1915, he requested a friend. M. F. Baringer of Philadelphia to write to the Company for him, and the letter written by Mr. Baringer contained, inter alia, the following: "His (Moses') understanding was that the Ten Dollars he paid was all the obliga Miss Isabel Darlington, for rule. Hon. Robert S. Gawthrop and Guy W. tion he assumed, but from the duplicate Knauer, contra. April 18, 1919. Opinion by LANDIS, P. J., 2nd Judicial District specially presiding. of the contract it appears that before he can recover that or any further money he may pay, it will be necessary for him to visit the property within sixty days and if dissatisfied all money to be re 205 was in Brentwood Park Addition, and not on the original Brentwood Park Plan. It was said that the whole development was known as Brentwood Park. The general rule is that to constitute a contract the acceptance of the offer must be absolute and identical in the terms of the offer. Thus in Swing v. Walker, 27 Sup. 366, Henderson, J., delivering the opinion of the Court said: funded.' If necessary to recover what he has paid Mr. Moses will go to Brentwood, but he is disatisfied without that, and has decided that he does not want to go any further into this deal. He is not in good condition physically, and would much prefer not to make this trip." Thereupon the Secretary and Treasurer of the Company wrote to Mr. Moses: "We are in receipt this morning of a letter from Mr. M. F. Baringer relative to the contract en-"Where one sues for damages for a tered into by you with this Company breach of contract, the burden is on him for the purchase of lots 48 and 49 in to establish a clear case of something block 205 Brentwood Park Addition. actually agreed to. Where a proposal We beg to advise you that we will have is made on one side and an acceptance our Mr. Sacks call and see you within is given on the other not according to the next few days and adjust matters the terms of the proposal the parties are to your entire satisfaction." We have not bound. Slaymaker v. Irwin, 4 Wh. also written Mr. Baringer to the same 369. To constitute a contract the aceffect. The letter to Mr. Baringer ceptance of the offer must be absolute stated: "We will have the salesman and identical with the terms of the who secured Mr. Moses' contract call offer. If one offers another to do a on him within the next few days and definite thing, and that other person acadjust matters to his satisfaction." Some cepts conditionally or introduces a new time later Mr. Moses received word term into the acceptance, his answer is from the Company that some one would either a mere expression of willingness call the following Monday. On October to treat, or it is in effect a counter pro15, 1915, he wrote in reply that he would posal.' Joseph v. Richardson, 2 Sup. not be home that day and for several 411. To bind the parties, an acceptance days thereafter "but in any case I want must be in exact conformity with the to say I have not changed my mind about proposal. A qualified acceptance does the Brentwood deal and you will please not constitute a contract." An acceptconsider this my final refusal to go any ance qualified in any manner or accomfurther with it as my nerve trouble panied by any reservation, or new proseems to get worse instead of better, and posal, is not that union of minds in I feel I must just drop this matter and which the law recognizes a contract: would ask that you kindly send me my Clements v. Bolster Supra. It must be ten dollars." After that no one from identical with the offer, and must be the Company called upon him, and no definite, and in such terms as it cannot correspondence was had between them be misunderstood: 35 Cyc. 53. In this 'until a letter dated Aug. 30, 1917 from case there is no evidence to indicate that the President of the Company demanded the defendant knew anything concerning payment of the balance due under the the location of these lots, or had ever agreement. A deed for lots 48 and 49 seen a plot of either Brentwood Park, in block 205, Brentwood Park Addition, Brentwood Park Addition or Brentwood was subsequently tendered and refused, Park Extension. The agreement he and this suit was then commenced. On signed, which was forwarded to the the trial it was shown by the plaintiff Company, was for two lots in Brentwood that a tract was first laid out at Brent- Park. It was not shown that he was wood called "Brentwood Park," that aware of there being no division 205 in subsequently an addition was made that plot. Be that, however, as it may, called "Brentwood Park Addition," and when the Company changed the agreeafter another plot was added called ment from Brentwood Park to Brent"Brentwood Park Extension," Blockwood Park Addition, he disavowed the 66 in evidence is plain and direct in its statements, and without ambiguity its construction is for the Court. Corcoran v. The Mutual Life Insurance Co. of New York, 179 Pa. 132. contract. It is true that he did not give | for the jury, but where a letter produced this change as the reason for his disavowal, but it was not necessary for him under the circumstances to do this. It was sufficient that he expressed his dissatisfaction, and he was not bound to give any specific reasons, and as a matter of fact he did not. The change having been thus made he was not, in my judgment, bound to carry out the contract. If this is correct, the plaintiff has now no standing to enforce it against him. But it seems to me, there is also another equally good reason why this claim should not be enforced. The contract specifically provided that "if dissatisfied all money paid" was "to be refunded." This of course implied under these conditions a revocation. It is however contended that Moses was to visit the property within sixty days, and as he did not do so his right to rescind it ceased. Conceding for the sake of the argument that a visit as thus specified was essential to the revocation, and this position is by no means clear, yet that stipulation could undoubtedly be waived by the Company." The parties to a contract may at any time rescind it, either in whole or in part, by mutual consent, and the surrender of their mutual rights is sufficient consideration. Fleval v. Hoover, 156 Pa. 276. As long as the contract is executory the parties may rescind it at any time by mutual consent. Thompson v. Stone, 43 Sup. 69. Reber v. Brownback, 27 Sup. 471. Army & Navy Magazine v. Yarner, 34 Montg. 33. In Fleck v. Collins, 28 Sup. 443. it was said: The parties had reduced their original contract to writing, but they were free by a new contract, not in writing, either to waive, annul or modify the former agreement, in any manner which involved no invasion of the rights of others." See also Carrier v. Dilworth, 59 Pa. 406; McNish 2. Reynolds, 95 Pa. 483; Green v. Paul, 155 Pa. 126; Dreifus v. Columbian Exposition Salvage Co., 194 Pa. 475. Even an agreement to rescind in some cases. may be inferred from the acts and declarations of the parties inconsistent with the existence of the original contract and the question of rescission is generally 66 It is conceded that if Moses had visited the lots and then had expressed his dissatisfaction the plaintiff's cause of action would be gone. The important inquiry that arises is therefore what he actually did. Within the proper time he went to his friend in Philadelphia, and had a letter written to the plaintiff company to the effect that he was dissatisfied "without that"; that is, without making the visit. He stated that he would visit the lots, if it was insisted upon, but that he was not well and would prefer not to make the trip. The prompt answer of the plaintiff was that their agent would call to see him in a few days, and adjust the matter to Mr. Moses' satisfaction. So far as the evidence discloses the agent did not call, and no demand was made for almost two years thereafter. It seems to me that knowing that Mr. Moses wished to save himself the journey to Brentwood, the letter can only be construed as a concurrence with his wish, and excused him from going to that trouble. He notified the Company in proper time that he was dissatisfied and that he did not intend to carry out the contract, and in my judgment the concurrent acts of the parties released him from the agreement, and entitled him to receive back the money he had already paid. For these reasons I am of the opinion that the rule for judgment non obstante veredicto should be made absolute, and judgment is now ordered to be entered in favor of the defendant for the sum of $10.00 with interest from October 1, 1915, making in all $12.10. Rule made absolute. B. J. Myers and John E. Malone, for Municipal Corporation-Erroneous Destrucdemurrer. tion of Building. Chas. G. Baker and S. V. Hosterman, official capacity, authorizes the city's Where a city council, acting in its district attorney contra. April 19, 1919. Opinion by HASSLER, through a mistaken belief that a portion J. ** ** agents and officers to construct a sidewalk adjacent to plaintiff's property, and of plaintiff's building extends into the This indictment is drawn under sec- street, and is an unlawful obstruction tion 55 of the Act of March 31, 1860, thereon, authorizes such agents or offiP. L. 397. It provides inter alia that cers to remove the same by going upon "if any person shall set up or establish such private property and cutting off the any house tent or booth **portion of the building claimed to thus any game ** of address or hazard with form an obstruction, and committing cards ** at which any money or valu- other acts of trespass thereon, the muable thing shall be played for or staked nicipality is held liable in Persons v. or betted upon" he shall be guilty of a Valley City, L. R. A. 1916 D, 1079, and misdemeanor, &c. must respond in damages for such wrongful trespass. 66 The offense charged in the indictment is in substantially the language of the act. It uses the word "chance" in place of hazard", and locates the tent or booth on the Lancaster Fair Grounds. Chance and hazard have practically the same meaning when used in connection with gambling. As the indictment locates the place where the tent or booth was erected in Lancaster County, it meets the legal requirement, and the designation of the Lancaster Fair Grounds as the place in Lancaster County where it was erected and located was not necessary, so that even though an improper name is given to those grounds it does not invalidate the indictment. We are satisfied that there is no merit in the demurrer and we dismiss it. Negligence-Electricity-Wires Blown In order to hold a corporation operating an electric light plant liable in damages for injuries inflicted by its highvoltage wires blown down at night in a storm and brought in contact with telephone wires, it is held in Borell v. Cumberland Teleg. & Teleph. Co, L. R. A. 1916 D, 1064. that it should be shown either that the poles were rotten, or the installation otherwise defective, or that the company was guilty of laches in the matter of finding out that the wires were down or in the matter of shutting off the electricity after obtaining that information. she was the owner, in fee simple, of a lot LANCASTER LAWREVIEW of land, situated in Manor Township, VOL. XXXVI] FRIDAY, MAY 23, 1919. [No.30 ERRATUM. After C. P., the first column of page 141, add "of Chester Co." with buildings erected thereon; that the defendant company, by reason of the erection and maintenance of a concrete dam across the Susquehanna River, had, between August 17, 1912, and the beginning of the suit, in times of flood, Common Pleas-Law. backed the water up Conestoga Creek, Alice M. Tripple v. The Pennsylvania Water and Power Company. Suits in law and equity for same cause as action. The pendency of a subsequent bill in equity is not a defense to a suit at law on the same cause of action. If the redress asked for were the same the equity proceeding could be stayed but the plaintiff could on proper proof recover damages by action of trespass and also restrain the defendant in equity from causing further damages. Question of law raised by affidavit of defense. C. P. of Lancaster Co., September Term, 1918, No. 25. F. Lyman Windolph, for plaintiff. thus preventing that creek from dis- March 29, 1919. Opinion by LANDIS, an injunction to restrain the defendant P. J. company from replacing or maintaining the flash boards or weir boards, pins, or other supports; and for an injunction to restrain it from erecting and maintaining any structure or device on the crest of the dam intended to increase the height thereof, or to obstruct the free flowage of water over the same. The defendant company has filed an affidavit of defense, in which it claims to raise a question of law, under the 20th section of the Act of May 14, 1915, P. L. 483, for the decision of the Court. It is therein set forth that the plaintiff, on September 5, 1918, filed her bill in Upon these facts, it seems to me, there equity against the above-named defend- are several reasons why the question of ant, which bill was served on the defend- law should be decided against the deant, and is now pending and undisposed fendant. In Mellerio v. Freeman, 211 of in this Court, and that said bill sets Pa., 202, it has been held that a plaintiff forth the same cause of action as is set can abandon a proceeding at law before forth in the statement filed by the plain-final judgment and go to the equity side tiff in this case, and that, for this reason, the plaintiff is not entitled to recover in this action. of the Court and file his bill, that is, he will not be barred in equity by the mere fact of having instituted proceedings at The facts of the case are briefly these. law. The Court, however, said that "it On August 17, 1918, the plaintiff brought is such a vicious practice to take up both her action of trespass against the defend-sides of the Court at the same time with ant, and on January 22, 1919, a state- the same case, that we have no hesitation ment of her cause of action was duly in holding he must abandon one proceed filed. In the statement, she alleged thating before he can prosecute the other." |