Schofield v. McGregor

1 Thomp. & Cook 404

• Court: New York Supreme Court
• Decided: September 15, 1873
• Status: Published

Opinion

Barnard, P. J.

I think the justice erred on the trial m not permitting the jury to determine the fact of the discharge of defendant by Schofield, one of the plaintiffs.

As a general rule, one of many parties to a contract in writing may rescind it. Pierson v. Hooker, 3 Johns. 68; Fitch v. Forman, 14 id. 172; Lattimore v. Harsen, id. 330; Buckley v. Dayton, id. 387; Austin v. Hall, 13 id. 286; Wheeler v. Curtis, 11 Wend. 653.

In this case the plaintiffs themselves proved that the plaintiffs, as a board, had voted that Schofield should be the superintendent and overseer of the building. The fact of the discharge by Schofield was denied. I think if Schofield was by vote made superintendent and overseer by plaintiffs, and he did discharge defendant from the contract, this action fails.

The jury were told that Schofield could not discharge defendant, even if he was superintendent and overseer of plaintiffs.

The judgment should be reversed and a new trial granted, costs to abide the event.

Judgment reversed and new trial granted.