The opinion of the court was delivered by
It was error to strike out the answer. The facts stated in it, instead of being either false or sham, were admitted by the complaint, and the defence thus raised, instead of being frivolous, was the legal resultant of such facts. The answer set up a supplementary agreement made by a duly authorized agent of the plaintiff acting within the scope of its authority and fully executed according to the principal’s instructions. The defendant was not even required to prove these facts, for they were the admitted facts of the ease. The right of the parties to enter into such an agreement, and thereby to alter a previous written contract, is fully established. Headley v. Cavileer, 53 Vroom 635.
The idea that after a contract so authorized and made has been executed according to the exact instructions of the principal, it can be repudiated upon the ground that the principal had made a mistake in not giving different instructions to his *656agent is an entirely novel proposition. The principal authorized his agent to agree with the vendee that title should pass to him upon the payment of $110 in cash; the agreement thus authorized was made and the cash was paid and the title passed under it. If, after the title had thus passed, the principal discovered that he had misinstructed his agent by reason whereof he had received a less sum than he might have demanded, the right in an appropriate action to recover the amount claimed presents a question with which this appeal is in nowise concerned. Upon the question of title, with which this appeal is solely concerned, it is enough for present purposes to say that an answer setting up the foregoing facts was neither sham in substance nor frivolous in law. On the contrary,'if the legal effect of the facts stated in the answer be not conclusively to establish the title of the defendant, it must be because of some matter of fact dehors the record that calls for the verdict of a jury for which under our system of jurisprudence a motion to strike out is no sort of a substitute and could not be consistently with the constitutional safeguards of that mode of trial.
Fraud is not charged in the. complaint, and if it were is rebutted by the affidavit of the cashier of the bank, the plaintiff’s own agent, and.in any event would be a question for the jury.
Furthermore, and even upon the plaintiff’s own theory, an action that challenged the title that had been legally transferred by the plaintiff’s-agent could not be maintained. on the ground of mistake unless the status quo had first been fully restored by the return or tender of the money paid, for the transaction was an entire one, so that if it was a mistake to deliver the bill of lading to the vendee, it was likewise a mistake to take his $110, and the entire mistake must be corrected as far as possible before an action based upon it can be maintained. In its complaint the plaintiff states that it refused to receive the $110 from the bank, but in its-proofs no such statement is made, but merely that it notified the defendant that he still owed $10. Even if the proof had been as broad as the complaint it would not have sufficed, for the *657bank was ilie plaintiffs agent and the refusal to receive the money it had collected was not the equivalent of a repayment or tender of the money to the vendee.
The net result of the proceeding brought before us by this appeal is that the respondent has the carbonator, $120 in cash and a judgment for $46.02 costs against the defendant, who is left with no action pending in which to try his counterclaim for the damages resulting from the ripping of the carbo nator out of his drug store. Such a result is strongly suggestive of error somewhere. The fundamental error was in going hack to the original contract upon a motion to strike out an answer that set up the making of a new contract. If the motion had been confined to the pleading it attacked, the existence of a substantial controversy would have been perfectly apparent. Even, however, under the original contract judgment for the plaintiff should not have been entered. The option of the vendee to pay $120 cash in full settlement is entirely consistent with the idea that in the event of a cash transaction such was to he the net price. Even if the court did not so construe the written contract, it was open to a jury to find that the parties themselves had put this practical construction upon it, of which the letters of the plaintiff would he persuasive proof, and the claim that such letters were not written for this purpose, hut by mistake, would certainly be a jury question.
IMoreover, the original contract provided for a retention of title in the vendor only in ease of a conditional sale on the installment and rental plan, and to ilie contrary provided for the immediate passing of title under the optional cash purchase. The vendor, therefore, when it contemplated this latter transaction and authorized its agent to agree to it and to carry it out, knew that under its contract it was passing the title to its vendee, at least it would be open to a jury so to find.
Eor these several reasons the judgment of the Circuit Court is reversed, the rule striking out the answer is set aside fo the end that a venire may be awarded. The appellant may move on notice for costs in this court.
*658For affirmance — None.
For reversal — The Chancellor, Chief Justice, Garrison, .Swayze, Tren chard, Parker, Voorhees, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Ter7 hune, Heppenheimer, JJ. 15.