
    McCreery et al. v. Day et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Contracts—Consideration—Release.
    An agreement to annul a written contract, the consideration of which is the mutual performance of acts by the parties, does not require any further consideration than the mutual release of the parties from their covenants.
    Appeal from special term, Hew York county.
    Action by William McCreery and Wallace C. Andrews against Melville C. Day, George J. Forrest, and Daniel E. Garrison, as executors of the last will and testament of Cornelius IC. Garrison, deceased, for breach of contract. Judgment was entered for defendants on the pleadings, and plaintiffs appeal.
    Argued before Van Brunt, P. J., and Bartlett and Macomber, JJ.
    
      James W. Hawes, for appellants. John ff. Dillon, for respondents.
   Macomber, J

The agreement for the breach of which this action is brought was entered into in writing between the plaintiffs, as parties of the first part, one C. H. Andrews, party of the second part, and C. K. Garrison, the defendants’ testator, as party of the third part. By its terms the plaintiffs sold to Garrison a one-fourth interest in the contract for the construction of the railroad of the Pittsburgh, Youngstown & Chicago Railroad Company, running from Pittsburgh to Akron, a distance of 120 miles, and agreed to turn over to Garrison a one-fourth part of all cash, bonds, and stock which should be received from that railroad company in payment for the work done under the construction contract. Mr. Garrison agreed to pay the plaintiffs for work already done and materials furnished, and rights acquired up to the date of the contract, the sum of $150,000, and pay them from time to time ' thereafter one-fourth of the amounts expended by them in the further construction of the road under the contract.

This action is brought to recover the one-fourth part of moneys expended by the plaintiffs after March 2, 1882, in carrying out their contract with the Pittsburgh, Youngstown & Chicago Railroad Company, and also to recover interest during the time Garrison delayed payment of the sum of $150,000. That part of the road running from Newcastle Junction, through Youngstown, to Akron, a distance of 80 miles, was the first to be, and it was intact, constructed. The case, however, does not show positively whether or not that strip of 40 miles between Newcastle Junction and Pittsburgh was actually constructed, but inferentially it appears that it was not. On the 13th day of April, 1882, the plaintiffs and said C. H Andrews executed an agreement with the Pittsburgh & Western Railroad Company, in which they speak of themselves as the owners of the Pittsburgh, Youngstown & Chicago Railroad from Newcastle Junction to Akron, but make no mention of the originally projected railway between Pittsburgh and Newcastle Junction. By this latter agreement the plaintiffs and C. H. Andrews agreed to sell to the Pittsburgh & Western Railroad Company a one-fourth interest in the Pittsburgh, Youngstown & Chicago Railroad, as described, between Newcastle Junction and Akron, for $150,000, those persons agreeing to pay for all expenditures for work done or materials furnished up to that date. There are many other details in this agreement, by way of recitals and otherwise, which are not necessary to be stated, further than to say that thePittsburgh, Youngstown & Chicago Railroad Company was to abandon the further construction of .the projected railroad between the said towns of Newcastle Junction and Akron, for the building of which railroad between those points the Pittsburgh, Cleveland & Toledo Railroad Company was created. On the 6th day of November, 1882, the defendants’ testator wrote to the plaintiffs and to C. H. Andrews a letter, acknowledging the receipt of the papers designed for the completion of the road from Akron to Newcastle Junction by the Pittsburgh & Western Railroad, consenting to sign them, but only on the understanding and condition “that I am not to pay any more money than Mr. Humphries’ company [the Pittsburgh & Western] pays, as provided in the agreement you made with him April 13th; that is, one hundred and fifty thousand dollars, and one-fourth of the cost of the road to Newcastle Junction after that date.” Being content that his line of railroad, which ran from Wheeling, through Pike, to Toledo,should have by this new arrangement, a connection with the line that ran to Pittsburgh, Mr. Garrison in the same letter asserted that he had given up the agreement of the 2d of March, above mentioned, and declared that he no longer desired any interest in the railroad from Newcastle J unction to Pittsburgh. Afterwards, and in compliance with the terms of that letter, the plaintiffs, with the said C. H. Andrews and the defendants’ testator, caused an agreementto be indorsed on the contract of March 2,1882, as follows: “It is agreed by the parties hereto that the within contract is annulled, and of no further effect, the same having been superseded by the agreement and arrangement made in lieu thereof, as embodied in the letter of O. K. Garrison by George J. Porsyth, his attorney, addressed to W. C. Andrews and others, dated November 6, 1882, and by a certain agreement made between O. H. Andrews, W. C. Andrews, W. MeOreery, James Gallery, Solo-man Humphries, and C. K. Garrison; all bearing date October 25, 1882.” This writing was signed by all the parties.

The agreement mentioned as of October 25, 1882, appears to have been fully carried out by the parties. In the absence of allegations of fraud or mutual mistake, the execution of the indorsement on the contract, for the breach of which this action is brought, absolutely annulled the contract sued on. It was, as the facts show, superseded by the agreements and arrangements made in the place of it. The denial in the reply that the indorsement was made in compliance with Garrison’s letter, does not raise any issue, for the reason that the reply admits the due execution of the indorsement, and that the indorsement specifically refers to the letter as being one of the inducements to enter into the agreement abrogating the contract of March 2, 1882.

It is urged, however, upon our attention in behalf of the appellants that there was no consideration for the indorsement upon the original contract annulling it. It is not necessary to show any new consideration in the mere annulling of a written agreement. The consideration of the agreement itself was the mutual performance of acts by the respective parties thereto, and the agreement to release each party from the obligation thereof necessarily carries with it a sufificientconsideration, in that the party so consenting is himself absolved from the performance of that part of the agreement which he would otherwise be required to fulfill. The consideration is mutual. Each party is precluded from raising any question of practice arising upon the printed record, and the case consequently must be regarded as though an application had been made by the defendant at the trial for a judgment upon the pleadings. The judgment should be affirmed, with costs. All concur.  