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Courtway v. Brand1/11/2005
o. v. Lakin , 88 S.W.3d 471, 476 (Mo.App.W.D. 2002). A written contract may be rescinded or abandoned by an agreement, either written or parol, of the parties to the contract. Tahan v. Garrick , 701 S.W.2d 189, 191 (Mo.App.E.D. 1985). Such rescission may be shown by acts and declarations of the parties which are inconsistent with the continued existence of the previous contract. Id . The evidence here is sufficient to establish a rescission by mutual agreement.
Here, as is clearly set forth in the affidavit of Thomas Buckley, which was presented to and considered by the trial court, the Release signed by Defendant Jordan did not reflect the agreement of the parties to release solely Defendant Wilson. Thomas Buckley's affidavit stated that the Release prepared by himself and Defendant Jordan's attorney inadvertently failed to include language that would have specifically excluded Defendant Brand from the effect of the Release. Thomas Buckley further stated that one week after the Release was signed, Defendant Jordan's attorney notified him that she was rescinding the Release. Defendant Wilson accepted the rescission. Both parties indicated the Release did not reflect their agreement. As there was an inconsistency between the declarations of the parties and the continued existence of the Release, we find the Release was mutually rescinded. The trial court erred in dismissing Defendant Jordan's claim against Defendant Brand for personal injuries arising out of an automobile accident which occurred February 6, 2000.
Reversed.
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