Ely v. Jones

Citations

• 101 Kan. 572
• 168 P. 1102
• 1917 Kan. LEXIS 149

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial — Affidavit—Witness Changing His Testimony. In the circumstances stated in the opinion, it is held that it was not error to grant a new trial upon the strength of an affidavit of a witness qualifying certain testimony given by him at the trial.</p> <p>2. Executory Contract — Sale of Land — Rescission by Parol — Not Within Statute of Frauds. An agreement to rescind an executory contract for the sale of lands is not within the statute of frauds, and may be proved as any other simple contract.</p> <p>3. Same — Valid Parol Contract. When the contract rests only in parol, partial or full performance is necessary to its validity.</p> <p>4. Same — Agreement to Rescind Contract — Consideration—Surrender of Mutual Rights. The consideration for such an agreement may consist in the mutual promises of the parties by which they agree to surrender their mutual rights under the original contract.</p> <p>5. Same. In this ease, while the answer pleaded a consideration for the agreement which would not in law be sufficient, a. promise to do that which the defendant was already bound to do, it is held that there was a sufficient consideration because the agreement could have no other effect or result than the surrender of mutual rights acquired under the original contract.</p> <p>6. Same — Former Decision Disapproved. Certain expressions in the opinion in Carr v. Williams, 17 Kan. 575, are disapproved.</p>