
    C. VERDON FIRTH, PLAINTIFF-APPELLANT, v. FLEETWOOD MOTOR CAR COMPANY, DEFENDANT-RESPONDENT.
    Argued February term, 1924
    Decided May term, 1924.
    Contracts — Breach Alleged — Another Contract Afterward Substituted — 'Unless Second Contract is Fulfilled Plaintiff May Recover on First Contract.
    On appeal from the Burlington Circuit.
    Before Gummere, Chief Justice, and Justices Minturn and Black.
    For plaint.iJf-appellant, Francis J. Smith.
    
    For defendant:respondent, Robert Peacock.
    
   Per Curiam.

The plaintiff sued to recover on a contract for the sale and purchase of a Hudson sedan motor car, warranted to be of the 1920 model. It turned out to have been a car made in the 3rear 1918 or earlier, and having ascertained that fact the plaintiff tendered it back to the vendor, and demanded the purehase-mone3r paid therefor. In this situation it was ultimately agreed that the defendant should substitute a seven-passenger Hudson car with a badger top for the car in question, and the plaintiff to pay the difference in the price, and also agreed that the carrying out of this arrangement should exonerate the defendant from any liability for non-performance of his original contract. At the close of the plaintiff’s case the trial judge directed a nonsuit, upon the ground that there had been a novation by the substitution of a new contract in place of the old one. We think this ruling was erroneous, and that there was no novation.

It was clearly established that the abandonment of the original contract was conditioned upon the performance by the defendant of the substituted contract, and, therefore, obviously, until such performance the original contract remained in force. The defendant failed to> perform the substituted contract, and the right of the plaintiff to recover for breach of the original contract, therefore remained intact. Cooke v. McAdoo, 85 N. J. L. 692; 20 R. C. L. 369, and cases' cited.

The judgment appealed from will'he reversed and a venire de novo issue.  