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tiations of the parties; it does not apply to subsequent agreements entered into by them. 6 R. C. L. 299; 4 Wigmore, Ev. § 2441; 5 Chamberlayne, Ev. § 3566. The court in Castro v. Illies (1854) 13 Tex. 229, confuses these two things. After referring to the rule that no written agreement can be added to, altered, varied, or changed by parol testimony, the court points out that in the case at bar it was attempted, by subsequent agreement, to substitute other lands for those mortgaged, and adds: "What is this but an attempt to alter, or to vary, or to change a written instrument by parol?"

Whether the Statute of Frauds prevents the subsequent oral modification is the subject of investigation in this annotation.

The annotation has been confined to agreements attempting to modify the prior written agreement, and excludes cases in which a discharge of the written agreement was attempted. One phase of discharge, viz., the surrender of a written lease by parol, has been discussed in the note in 4 A.L.R. 666.

Modification may consist of two elements: (1) A discharge of the written contract, or some of its terms; (2) the creation of a new obligation instead of those discharged, so that a phase of discharge is necessarily considered herein. But this extends only so far as it is connected with an attempted substitution. In a great majority of the cases discussed in this annotation, modification is not separated into its elements. It is true, of course, that modification may not involve a discharge of any element of the original contract, but may consist merely of additions.

The modification of contracts originally oral, but which have been taken out of the Statute of Frauds by part performance, acceptance, etc., is not considered. It has been held, where a contract for the sale of goods is taken out of the Statute of Frauds by the payment of earnest money, but is not reduced to writing, that it does not contravene the spirit or policy of the statute to allow its terms to be

varied by parol, any more than it would to allow the terms of the original contract to be thus proved. It is competent, therefore, for the parties to extend or vary the time for the performance of such a contract by a subsequent parol agreement at any time while it remains executory. Packer v. Stewart (1861) 34 Vt. 127. It is the theory of some courts that a lease which has less than a year to run after the subsequent agreement may be modified by a parol agreement, since it is then not within the Statute of Frauds. Doherty v. Doe (1893) 18 Colo. 456, 33 Pac. 165. The decision in this case, however, is based upon another ground. Sherman, C. & Co. v. Buffum & Pendleton (1919) 91 Or. 352, 179 Pac. 241.

The question as to what amounts to a modification is beyond the scope of the annotation. If the subsequent agreement is treated as a modification, it is discussed herein; otherwise not. Some examples of facts which have been held not to amount to modification are, however, given infra. In holding that a purchaser of real estate, who had made a cash payment, could not recover the payment so made on the theory that the vendor had defaulted in failing to furnish an abstract within the time fixed in the written contract of sale, where the purchaser had, prior to the date fixed, waived this provision of the contract by requesting the vendor not to deliver, and afterwards again waived performance by offering to go on with the deal by requesting that the abstract be sent to his attorney, the court in Stout v. Edwards (1919) Mo. App. -, 210 S. W. 128, says: "The contract here is in writing. There has been no effort made to change it, but only that a certain part, as to an abstract being furnished on a certain day, has not been required to be performed. There is nothing in the law hindering that." The question of modification by parol is not raised, where the parties by mistake stated a wrong purchase price in their contract for the sale of real estate, and subsequently had the scrivener who drew the contract change the amount

to the correct purchase price. Kneedler v. Anderson (1892) 43 Ill. App. 317. An agreement between the vendor and vendee of goods, upon the vendee's finding himself unable to pay for the goods, that the vendor should buy them back, is not a modification of the original contract, but a resale. Blanchard v. Trim (1868) 38 N. Y. 225. In Creigh v. Boggs (1881) 19 W. Va. 240, specific performance of a written contract for the sale of land was granted, with parol variations in the courses of the land agreed to by the parties subsequently and admitted in the answer, where the variations in the courses were not made, as admitted by the answer, with a view of modifying the original parol understanding of the parties which preceded the written contract, but simply to carry out the original parol agreement and understanding, which the written contract failed to do because of a mutual mistake of the parties.

The annotation has also been confined to modification by agreement, as distinguished from a mere forbearance or waiver by one of the parties thereto. The line between these two situations is somewhat indistinct in the cases, however clear it may be in theory. The mere act of a purchaser in awaiting delivery by his vendor may not in all cases amount to a contract extending time. Where it does not, the Statute of Frauds, of course, has no application. Ogle v. Vane (1867) L. R. 2 Q. B. (Eng.) 275, 7 Best & S. 855, 36 L. J. Q. B. N. S. 175, 15 Week. Rep. 564.

See Albert Mackie & Co. v. S. S. Dale & Sons (1920) 122 Miss. 430, 84 So. 453, infra, IV. a.

The annotation has also been confined to the modification of executory contracts; that is, to the modification before breach, or expiration thereof by its terms.

An agreement by a mortgagee to accept payment of the mortgage debt in other than money is held not an agreement with respect to a conveyance in land, hence is not within the Statute of Frauds. McKenzie v. Stewart (1916) 196 Ala. 241, 72 So. 109. It is stated that it is true that the result of

the mortgagee's acceptance of the property agreed to be accepted in payment would be the release of the land from the mortgage, but the same result would follow from his acceptance of money also, and in either case the release of the land results incidentally from the operation of law, and, not from any agreement of the parties.

Other examples of facts held not to present a case within the Statute of Frauds appear in the cases. An agreement by vendors who were under obligation to remove clouds upon their title, with the vendee, to remove the clouds, has been held an original undertaking, which does not vary, add to, or contradict the written contract of sale, and is, therefore, not required by the Statute of Frauds to be in writing. Foster v. Hoff (1913) 37 Okla. 144, 131 Pac. 531, Ann. Cas. 1916B, 218.

It has been held that a written agreement between a grantor and grantee after the conveyance of the land, that a balance on the purchase price should be retained until the grantor had perfected the title, might be modified by oral agreement of the parties that, in consideration of an abatement of part of the purchase price so retained, the balance of the purchase money should be paid without the perfection of the title as agreed upon. Negley v. Jeffers (1875) 28 Ohio St. 100. This is on the theory that the contract was not one within the Statute of Frauds.

The extensions from time to time by parol for periods less than a year, of a contract which was to be performed within a year, are unaffected by the Statute of Frauds. Donovan v. Richmond (1886) 61 Mich. 467, 28 N. W. 516.

A subsequent agreement, specifying a certain place within a city for the payment of a balance due upon a land contract which specified no particular part of the city for the payment of the balance, is held in Sayre v. Mohney (1899) 35 Or. 141, 56 Pac. 526, not to change or qualify the terms of the written agreement, but

to be a collateral or independent engagement.

There was an attempt to modify a lease in Blumenthal v. Bloomingdale (1885) 100 N. Y. 558, 3 N. E. 292, but no specific objection to the evidence of the modification founded upon the Statute of Frauds was taken when the proof was offered, and there was no exception to the charge that, after breach, the terms of the lease could be modified or altered by a parol agreement; the sole contention being that the substituted agreement which formed the basis of the lessee's right was itself void as a lease for more than one year, or revocable as a mere license founded upon no consideration.

A contract for the sale of land, on which the vendor agreed to erect a house of a specified value according to plans which were to be subsequently prepared and approved, is not conclusive of the plans according to which the building was to be constructed; hence the Statute of Frauds does not apply to so much of the contract as relates to the building. It is, therefore, permissible for the parties to modify or alter the plan without evidencing that modification or alteration in writing. Petrie v. Spooner (1920) 145 Ark. 138, 223 S. W. 383.

The obligation represented by a note given to evidence the unpaid purchase price of land may be modified by oral agreement, since the obligation represented by the note might have rested in parol as well as in writing, it not being a contract for the sale of land. McCoun v. Shipman (1920) - Ind. App. —, 128 N. E. 683. An offer to purchase lands, limiting the time within which it may be accepted, is not an agreement within the meaning of the Statute of Frauds; consequently, an agreement to extend the time fixed in the writing for the acceptance thereof is not an agreement which the statute requires to be evidenced in writing. Morrell v. Studd & Millington [1913] 2 Ch. (Eng.) 648, 109 L. T. N. S. 628, 58 Sol. Jo. 12.

Modification of a contract must be distinguished from the entering into a new contract which is to take the

place of the old. Examples of new contracts appear in the following cases: In Wilson v. Beam (1890) 12 Ky. L. Rep. 367, 14 S. W. 362, a purchaser of land at an auction sale, being unable to give the bond required, wrote to the vendor to that effect, and stated that he would have to renounce the contract. This was acceded to by the vendor, who entered into a new agreement with the vendee relative to the purchase of the same land, upon new terms as to security. Upon an action for breach of the oral contract, this was treated as a new contract, and not as a modification of the old, and it is held that, the agreement being verbal, no action for its breach can be maintained. A surety for the lessor of a mill, who has verbally assented to a subsequent agreement between the lessor and lessee changing the term of the lease, is not relieved of liability on his suretyship. Smith v. Loomis (1883) 74 Me. 503. The argument for the surety was that the second arrangement was a new and independent contract substituted for and canceling the first one, and was not binding upon the surety on account of the Statute of Frauds, a contention that was denied. See also Pearsall v. Henry (1908) 153 Cal. 314, 95 Pac. 154. An interesting decision on this point appears in Cross v. Ramdullah (1921) 274 Fed. 762. In that case, involving written leases of rice lands, upon the lessor's failure to furnish water for the irrigation of the lands and upon the lessee's notifying the lessor of an intention to terminate the leases, the lessor agreed orally that if the lessee would continue in possession of the land and care for the crops of rice planted, and the land did not produce the normal crop of good rice, the lessor would repay lessee all rental money on the land so failing to produce, and would relinquish all claim for rental for the year 1918 on such land as failed to produce a normal crop, and would also pay the lessee all money which had been expended, or which might thereafter be expended, by lessee, on the nonproducing land. The lessee

concurred in this agreement and remained in possession of the land. In sustaining the parol agreement the court says: "Regarded as an alteration or modification of the leases, the alleged oral promise or agreement must fail. But should it be so regarded? It was entered into to meet a situation that had arisen, and for a compromise and adjustment thereof to suit the purposes of the parties. The leasing was for a term of two years, the major part of which in time was yet to run. The effect of the agreement, if made,-which was for the jury to determine,-was not to alter the terms of the leases in any respect, nor to modify the stipulations therein contained, but to take care of the situation that had then arisen, and enable the parties to harvest the crop which would eventually be produced for the year 1918; and it was to be performed within a year. The agreement did not contemplate change that was to be imposed upon the contracts of leasing for future observance. Its single purpose was to meet an emergency, leaving the leases, when that was disposed of, to run on as they were written. We are impelled to the conclusion that the alleged promise or agreement must be regarded as a new and independent agreement, and not as an alteration or modification of the leases, within the meaning of § 1698 of the Civil Code." Section 1698 of the Civil Code, referred to, is that of California, and provides that "a contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise."

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It may be stated generally at this point that, with the exception of the cases discussed under subd. III., the cases uniformly support the rule that an oral modification of a written contract within the Statute of Fraudsthat is, the agreement itself—is unenforceable. That the modified contract is unenforceable is held in some cases in which it appears that acts have been done in accord with the oral modification, and, in some cases at least, where it is expressly alleged that such acts were done in reliance upon the oral modification. Other

cases in which a party has acted in reliance upon the oral modification, especially where he has completed performance of the obligations imposed upon him by the agreement, hold that the rights of the parties must be determined by the modified agreement. And some cases have determined the rights of the parties by the modified agreement, where one party has failed to take action called for by the writing in reliance upon the oral modification. These cases are based upon estoppel, waiver, etc.; none of them enforce the agreement as modified orally, by virtue of the agreement; reliance is placed upon the act of the party in inducing a departure from the written agreement, as working an estoppel against him. These cases are fully discussed in subd. IV. infra.

It is difficult, if not impossible, to reconcile the cases in which the oral agreement has been acted upon. A majority of those cases which adhere to the rule that the Statute of Frauds invalidates the oral modification do not consider the fact that the oral agreement has been acted upon; while those adhering to the opposite theory emphasize this fact, and thereby present a case of waiver, estoppel, etc. Where the contract is fully executed by both parties according to the modified agreement, the Statute of Frauds does not invalidate the oral modification.

The foregoing rules have been applied in many cases without reference to the character of the modification. In some, a distinction is made in regard to whether the modification is one of a part of the agreement which itself must be in writing. Other cases have expressly repudiated this distinction, where the part sought to be modified is in fact a part of the writing, although it was not necessarily So. A distinction has also been made, in some jurisdictions, between an extension of time and other modifications.

II. Rule that contract cannot be modified by oral agreement.

a. In general.

The broad general doctrine is an

nounced in many cases that a contract required by the Statute of Frauds to be in writing cannot be modified by subsequent oral agreement.

United States.-Emerson v. Slater (1859) 22 How. 28, 16 L. ed. 360 (obiter); Reid v. Diamond Plate Glass Co. (1898) 29 C. C. A. 110, 54 U. S. App. 619, 85 Fed. 193; Jones's Case (1875) 11 Ct. Cl. 733.

California.

Adler v. Friedman

(1860) 16 Cal. 138; Boyd v. Big Three Ranch Co. (1913) 22 Cal. App. 108, 133 Pac. 625, approved in obiter statement in Fogg v. McAdam (1914) 25 Cal. App. 522, 144 Pac. 296.

Connecticut.-Malkan v. Hemming (1909) 82 Conn. 293, 73 Atl. 752.

Georgia. Simonton v. Liverpool, L. & G. Ins. Co. (1874) 51 Ga. 80; Mitchell v. Universal L. Ins. Co. (1875) 54 Ga. 289; Augusta Southern R. Co. v. Smith & K. Co. (1899) 106 Ga. 864, 33 S. E. 28; Willis v. Fields (1909) 132 Ga. 242, 63 S. E. 828; Hawkins v. Studdard (1909) 132 Ga. 268, 131 Am. St. Rep. 190, 63 S. E. 852; Moore v. Collier (1910) 133 Ga. 762, 66 S. E. 1080; Jarman v. Westbrook (1910) 134 Ga. 19, 67 S. E. 403; Elrod v. Camp (1920) 150 Ga. 48, 102 S. E. 357; Sikes v. Mallonee (1912) 11 Ga. App. 632, 75 S. E. 988.

Indiana.-Carpenter V. Galloway (1881) 73 Ind. 418; Bradley v. Harter (1901) 156 Ind. 499, 60 N. E. 139; Christian v. Highlands (1903) 32 Ind. App. 104, 69 N. E. 266; Burgett v. Loeb (1908) 43 Ind. App. 657, 88 N. E. 346; Wellinger v. Crawford (1909) 48 Ind. App. 173, 89 N. E. 892, 93 N. E. 1051; Napier Iron Works v. Caldwell & D. Iron Works (1915) 60 Ind. App. 317, 110 N. E. 714.

Kansas. Autem v. Mayer Coal Co. (1916) 98 Kan. 379, 158 Pac. 13.

Kentucky. McConathy v. Lanham (1903) 116 Ky. 735, 76 S. W. 535; Wigginton v. Ewell (1888) 10 Ky. L. Rep. 383, 9 S. W. 285.

Maryland. - Walter V. Victor G. Bloede Co. (1901) 94 Md. 80, 50 Atl. 433; Abrams v. Eckenrode (1920) 136 Md. 244, 110 Atl. 468.

Michigan. Abell v. Munson (1869) 18 Mich. 306, 100 Am. Dec. 165; Cook v. Bell (1869) 18 Mich. 387.

Minnesota. Brown V. Sanborn

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(1875) 21 Minn. 402; Burns v. Fidelity Real Estate Co. (1892) 52 Minn. 31, 53 N. W. 1017; Grand Forks Lumber Co. v. McClure Logging Co. (1908) 103 Minn. 471, 115 N. W. 406.

Missouri.--Warren v. A. B. Mayer Mfg. Co. (1901) 161 Mo. 112, 61 S. W. 644; Rucker v. Harrington (1893) 52 Mo. App. 481, approved in Newman v. Bank of Watson (1897) 70 Mo. App. 135; Last Chance Min. Co. v. Tuckahoe Min. Co. (1918) · Mo. App. —, 202 S. W. 287; Eastern States Refrigerating Co. v. J. W. Teasdale & Co. (1919) Mo. App. 211 S. W. 693; Fuller Mo. App., 233

v. Presnell (921) S. W. 502.

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New Jersey.-Den ex dem. Mayberry v. Johnson (1835) 15 N. J. L. 116. New York. Schultz V. Bradley (1874) 57 N. Y. 646; Hill v. Blake (1884) 97 N. Y. 216; Maddaloni Olive Oil Co. v. Aquino (1920) 191 App. Div. 51, 180 N. Y. Supp. 724; W. J. Crouch Co. v. Farrell (1920) 184 N. Y. Supp. 564. See New York cases in subds. IV. & V. infra.

Pennsylvania.-Espy v. Anderson (1850) 14 Pa. 311. But see Le Fevre v. Le Fevre (1818) 4 Serg. & R. 241, 8 Am. Dec. 696.

Rhode Island.-Ladd v. King (1849) 1 R. I. 224, 51 Am. Dec. 624; Hicks v. Aylsworth (1882) 13 R. I. 562.

Texas.-Castro v. Illies (1854) 13 Tex. 229; Beard v. A. A. Gooch & Son (1910) 62 Tex. Civ. App. 69, 130 S. W. 1022; Gurley v. Hanricks (1911) Tex. Civ. App. 139 S. W. 721; Burgher v. Canter (1916) - Tex. Civ. App., 190 S. W. 1147. See Adams v. Hughes, infra, subd. V.

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Virginia.-Pence v. Life (1905) 104 Va. 518, 52 S. E. 257; Heth v. Wooldridge (1828) 6 Rand. 605, 18 Am. Dec. 751.

Wisconsin.-Hanson v. Gunderson (1897) 95 Wis. 613, 70 N. W. 827; Saveland v. Western Wisconsin R. Co. (1903) 118 Wis. 267, 95 N. W. 130; SCHAAP V. WOLF (reported herewith) ante, 7.

See Doar v. Gibbes (1831) 8 S. C. Eq. (Bail.) 371; Bullis v. Presidio Min. Co. (1889) 75 Tex. 540, 12 S. W. 397, and Adams v. Hughes (1911) Tex. Civ. App., 140 S. W. 1163, in

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