
    Edward Tabak, Respondent, v. Charles Fettner, Appellant.
    Second Department,
    June 24, 1910.
    Contract — pleading — implied contract — evidence — agreed value — actual value.
    • Where-a complaint alleges that the defendant agreed to do work for the plaintiff in consideration of thirty-five dollars and. an icebox; that the icebox was delivered, but that defendant failed to do the work to plaintiff’s damage in a certain sum, the action is upon an implied contract to pay for the icebox.
    Although it appears that the parties agreed upon seventy-three dollars as the . value of .the icebox when they made the contract it is error to exclude evidence of the actual value offered by'the defendant. '
    • Appeal by the defendant, Charles Fettner, from a judgment' of the Municipal Court of the city of Rew York, borough' of Brooklyn,' in' favor of the plaintiff, rendered on. the 18th day of June, 19Q9. ■
    
      Edward E. Rosenblume [David T. Smith with him on the brief], for the appellant.
    
      Jacob S. Gross, for the respondent.
   Jenks, J.:

This is an appeal by the defendant from a judgment of the Municipal Court; Thé- plaintiff complained that he and the defendant made a contract whereby the defendant should do.certain work in consideration of $35 cash and an icebox then owned by the plaintiff ; that thereafter the plaintiff transferred the title to the icebox to the defendant, who failed in performance of the contract, to the damage of. the plaintiff in $73. The plaintiff’s testimony was that the parties agreed upon $73 as the value of the icebox, as it constituted a part of the consideration of the contract, and the judgment is for that sum. The plaintiff’s avowed theory of his action is upon the implied contract to pay for the icebox. Such action is in rescission of the contract because of the refusal of performance by the defendant, who therefore retains the consideration without consideration, and the action is upon the implied promise to return the consideration. (Freer v. Denton, 61 N. Y. 492, and cases cited.) ' The plaintiff, if he prevail, is entitled to the consideration or its value. But this is not the arbitrary value determined by the parties for the particular purposes of the contract which the plaintiff has thus rescinded, but the actual value thereof. Hence I think that the defendant should have been permitted to give evidence as to the actual value of the icebox.

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

Hirsohberg, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgznent of the Municipal Court reversed and new trial ordered, costs to abide the event.  