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tiations of the parties; it does not varied by parol, any more than it would apply to subsequent agreements en to allow the terms of the original contered into by them. 6 R. C. L. 299; tract to be thus proved. It is compe4 Wigmore, Ev. § 2441; 5 Chamber tent, therefore, for the parties to layne, Ev. § 3566. The court in Castro extend or vary the time for the perv. Illies (1854) 13 Tex. 229, confuses formance of such a contract by a subthese two things. After referring to sequent parol agreement at any time the rule that no written agreement while it remains executory. Packer v. can be added to, altered, varied, or Stewart (1861) 34 Vt. 127. It is the changed by parol testimony, the court theory of some courts that a lease points out that in the case at bar it which has less than a year to run was attempted, by subsequent agree after the subsequent agreement may ment, to substitute other lands for be modified by a parol agreement, those mortgaged, and adds: “What is since it is then not within the Statute this but an attempt to alter, or to vary, of Frauds. Doherty v. Doe (1893) 18 or to change a written instrument by Colo. 456, 33 Pac. 165. The decision parol ?"

in this case, however, is based upon Whether the Statute of Frauds pre another ground. Sherman, C. & Co. vents the subsequent oral modification v. Buffum & Pendleton (1919) 91 Or. is the subject of investigation in this 352, 179 Pac. 241. annotation.

The question as to what amounts to The annotation has been confined a modification is beyond the scope of to agreements attempting to modify the annotation. If the subsequent the prior written agreement, and ex agreement is treated as a modification, cludes cases in which a discharge of it is discussed herein; otherwise not. the written agreement was attempted. Some examples of facts which have One phase of discharge, viz., the been held not to amount to modificasurrender of a written lease by parol, tion are, however, given infra. has been discussed in the note in 4 holding that a purchaser of real A.L.R. 666.

estate, who had made a cash payment, Modification may consist of two could not recover the payment so elements: (1) A discharge of the made on the theory that the vendor written contract, or some of its terms; had defaulted in failing to furnish an (2) the creation of a new obligation abstract within the time fixed in the instead of those discharged, so that a written contract of sale, where the phase of discharge is necessarily con purchaser had, prior to the date fixed, sidered herein. But this extends only waived this provision of the contract so far as it is connected with an by requesting the vendor not to deattempted substitution. In a great liver, and afterwards again waived majority of the cases discussed in this performance by offering to go on with annotation, modification is not sepa the deal by requesting that the rated into its elements. It is true, of abstract be sent to his attorney, the course, that modification may not in court in Stout v. Edwards (1919) volve a discharge of any element of Mo. App.

210 S. W. 128, says: the original contract, but may consist “The contract here is in writing. merely of additions.

There has been no effort made to The modification of contracts orig- change it, but only that a certain part, inally oral, but which have been as to an abstract being furnished on taken out of the Statute of Frauds by a certain day, has not been required to part performance, acceptance, etc., is be performed. There is nothing in the not considered. It has been held, law hindering that.” The question of where a contract for the sale of goods modification by parol is not raised, is taken out of the Statute of Frauds where the parties by mistake stated a by the payment of earnest money, but wrong purchase price in their conis not reduced to writing, that it does tract for the sale of real estate, and not contravene the spirit or policy of subsequently had the scrivener who the statute to allow its terms to be drew the contract change the amount

to the correct purchase price. Kneed the mortgagee's acceptance of the ler V. Anderson (1892) 43 Ill. App. property agreed to be accepted in pay317. An agreement between the vend ment would be the release of the land or and vendee of goods, upon the from the mortgage, but the same revendee's finding himself unable to pay sult would follow from his acceptance for the goods, that the vendor should of money also, and in either case the buy them back, is not a modification release of the land results incidentalof the original contract, but a resale. ly from the operation of law, and, Blanchard v. Trim (1868) 38 N. Y. not from any agreement of the par225. In Creigh v. Boggs (1881) 19 ties. W. Va. 240, specific performance of a Other examples of facts held not written contract for the sale of land to present a case within the Statute was granted, with parol variations in of Frauds appear in the cases. An the courses of the land agreed to by agreement by vendors who were unthe parties subsequently and admitted der obligation to remove clouds upon in the answer, where the variations in their title, with the vendee, to remove the courses were not made, as ad the clouds, has been held an original mitted by the answer, with a view of undertaking, which does not vary, add modifying the original parol under to, or contradict the written contract standing of the parties which pre of sale, and is, therefore, not required ceded the written contract, but simply by the Statute of Frauds to be in to carry out the original parol agree writing. Foster V. Hoff (1913) 37 ment and understanding, which the Okla. 144, 131 Pac. 531, Ann. Cas. written contract failed to do because 1916B, 218. of a mutual mistake of the parties. It has been held that a written

The annotation has also been con agreement between a grantor and fined to modification by agreement, as grantee after the conveyance of the distinguished from a mere forbear land, that a balance on the purchase ance or waiver by one of the parties price should be retained until the thereto. The line between these two grantor had perfected the title, might situations is somewhat indistinct in be modified by oral agreement of the the cases, however clear it may be parties that, in consideration of an in theory. The mere act of a purchas abatement of part of the purchase er in awaiting delivery by his vendor price so retained, the balance of the may not in all cases amount to a con purchase money should be paid withtract extending time. Where it does out the perfection of the title as not, the Statute of Frauds, of course, agreed upon. Negley v. Jeffers (1875) has no application. Ogle v. Vane 28 Ohio St. 100. This is on the theory (1867) L. R. 2 Q. B. (Eng.) 275, 7 that the contract was not one within Best & S. 855, 36 L. J. Q. B. N. S. 175, the Statute of Frauds. 15 Week. Rep. 564.

The extensions from time to time See Albert Mackie & Co. v. S. S. by parol for periods less than a year, Dale & Sons (1920) 122 Miss. 430, 84 of a contract which was to be perSo. 453, infra, IV. a.

formed within a year, are unaffected The annotation has also been con

by the Statute of Frauds. Donovan v. fined to the modification of executory

Richmond (1886) 61 Mich. 467, 28 N. contracts; that is, to the modification

W. 516. before breach, or expiration thereof

A subsequent agreement, specifyby its terms.

ing a certain place within a city for An agreement by a mortgagee to ac

the payment of a balance due upon a cept payment of the mortgage debt in

land contract which specified no parother than money is held not an agreement with respect to a conveyance in

ticular part of the city for the payland, hence is not within the Statute

ment of the balance, is held in Sayre of Frauds. McKenzie v. Stewart v. Mohney (1899) 35 Or. 141, 56 Pac. (1916) 196 Ala. 241, 72 So. 109. It is 526, not to change or qualify the stated that it is true that the result of 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 les

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 re cases in which a party has acted in mained in possession of the land. In reliance upon the oral modification, sustaining the parol agreement the especially where he has completed court says: “Regarded as an altera performance of the obligations imtion or modification of the leases, the posed upon him by the agreement, alleged oral promise or agreement hold that the rights of the parties must fail. But should it be so re must be determined by the modified garded? It was entered into to meet agreement. And some cases have dea situation that had arisen, and for a termined the rights of the parties by compromise and adjustment thereof the modified agreement, where one to suit the purposes of the parties. party has failed to take action called The leasing was for a term of two for by the writing in reliance upon years, the major part of which in the oral modification. These cases time was yet to run. The effect of the are based upon estoppel, waiver, etc.; agreement, if made,—which was for none of them enforce the agreement the jury to determine,—was not to al as modified orally, by virtue of the ter the terms of the leases in any agreement; reliance is placed upon respect, nor to modify the stipulations the act of the party in inducing a detherein contained, but to take care of parture from the written agreement, the situation that had then arisen, as working an estoppel against him. and enable the parties to harvest the These cases are fully discussed in crop which would eventually be pro subd. IV. infra. duced for the year 1918; and it was It is difficult, if not impossible, to to be performed within a year. The reconcile the cases in which the oral agreement did not contemplate a agreement has been acted upon. A change that was to be imposed upon majority of those cases which adhere the contracts of leasing for future to the rule that the Statute of Frauds observance. Its single purpose was

invalidates the oral modification do to meet an emergency, leaving the not consider the fact that the oral leases, when that was disposed of, to agreement has been acted upon; while run on as they were written. We are those adhering to the opposite theory impelled to the conclusion that the al emphasize this fact, and thereby preleged promise or agreement must be sent a case of waiver, estoppel, etc. regarded as a new and independent Where the contract is fully executed agreement, and not as an alteration by both parties according to the modior modification of the leases, within fied agreement, the Statute of Frauds

he meaning of $ 1698 of the Civil does not invalidate the oral modificaCode." Section 1698 of the Civil tion. Code, referred to, is that of Califor The foregoing rules have been apnia, and provides that "a contract in plied in many cases without reference writing may be altered by a contract to the character of the modification. in writing, or by an executed oral In some, a distinction is made in reagreement, and not otherwise."

gard to whether the modification is It may be stated generally at this one of a part of the agreement which point that, with the exception of the itself must be in writing. Other cases cases discussed under subd. III., the have expressly repudiated this discases uniformly support the rule that tinction, where the part sought to be an oral modification of a written con modified is in fact a part of the writtract within the Statute of Frauds ing, although it was not necessarily that is, the agreement itself—is un so. A distinction has also been made, enforceable. That the modified con in some jurisdictions, between an extract is unenforceable is held in some

tension of time and other modificacases in which it appears that acts tions. have been done in accord with the

II. Rule that contract cannot be modi. oral modification, and, in some cases

fied by oral agreement. at least, where it is expressly alleged that such acts were done in reliance

a. In general. upon the oral modification. Other The broad general doctrine is an


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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 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

(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 v. Presnell (921) - Mo. App. 233 S. W. 502.

New Jersey.-Den ex dem. Mayberry v. Johnson (1835) 15 N. J. L. 116.

New York.-Schultz 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.

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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