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fra, subd. V.; and Creigh v. Boggs (1881) 19 W. Va. 240, supra, subd. I. The facts in the foregoing cases are varied; and this is true as to other cases which lend indirect support to the above rule. It was held in Pence v. Life (1905) 104 Va. 518, 52 S. E. 257, that a contract for the sale of land cannot be modified by a subsequent parol agreement, in the absence of some act as part performance to take it out of the operation of the Statute of Frauds. A stipulation in a deed that it was made upon condition that the grantee live with and care for the grantor during the remainder of his life cannot be waived by parol. Culy v. Upham (1903) 135 Mich. 131, 106 Am. St. Rep. 388, 97 N. W. 405. That a purchaser of land cannot be compelled to take and pay for land not embraced within the written contract, but included in a parol agreement, is held in Wigginton v. Ewell (1888) 10 Ky. L. Rep. 383, 9 S. W. 285. In the headnote to the case the parol agreement is stated to have been a subsequent agreement. Nothing is said as to this in the opinion, nor is it stated anywhere to have been a modification of the original contract. A subsequent oral agreement between the parties to a contract for the sale of timber, as to what had been growth of the timber between the date of the contract and of the cutting, is stated in Whitfield v. Rowland Lumber Co. (1910) 152 N. C. 211, 67 S. E. 512, to be an oral conveyance of an interest in realty.

A verbal modification of a written agreement for the purchase and sale of goods is invalid under the Statute of Frauds. Schultz v. Bradley (1874) 57 N. Y. 646. By the verbal agreement the parties sought to increase the amount of the goods to be delivered under the contract. In Hill v. Blake (1884) 97 N. Y. 216, it was held that a vendor of iron, who had failed to deliver within the time stipulated by the written contract, but had offered to deliver within the time provided by the oral extension, could not maintain an action for breach of contract against his vendee for failure to accept the goods sold. The court states that there were no circum

stances that would work an estoppel against the defendant. See further, infra, V., especially New York cases. A vendor of wine cannot defend an action in damages for refusal to deliver, by showing an oral agreement that the written contract, which provided for six days' credit, should be modified by payments being made in cash, and the refusal of the vendee to pay in cash. Maddaloni Olive Oil Co. v. Aquino (1920) 191 App. Div. 51, 180 N. Y. Supp. 724. An agreement by a vendor of brick to receive in payment of the brick a certain amount in cash, and the balance in two lots, cannot when part of the brick has been delivered, and the purchaser has refused to receive any more, be modified orally by the parties, to the effect that the purchaser should pay for the brick already delivered at the contract price, the purchaser to take one of the lots at the stipulated price, and to pay the balance in cash. The action in this case was brought to secure a conveyance of the lot agreed upon in the oral agreement, and recover the balance of the purchase price. Burns v. Fidelity Real Estate Co. (1892) 52 Minn. 31, 53 N. W. 1017.

An existing lease for years cannot be turned into a lease at will by verbal agreement. Den ex dem. Mayberry v. Johnson (1835) 15 N. J. L. 116. In Meyers v. Knights of Pythias Bronx Temple Asso. (1920) 194 App. Div. 405, 185 N. Y. Supp. 436, it was held not competent to modify a lease of real estate for the term of twentyone years, and under seal, by a parol agreement. Nothing is said as to the Statute of Frauds, however. A supplementary verbal contract, by which the lessor of a coal mine agreed to pay an additional royalty for the coal mined, was held invalid, where neither of the parties had taken any action upon it; but the court does not consider this as a modification of the original lease. Crawford v. Wick (1868) 18 Ohio St. 190, 98 Am. Dec. 103, 8 Mor. Min. Rep. 541.

The surrender of a written lease by parol is discussed in the annotation in 4 A.L.R. 666.

Where the doctrine prevails that a

An oral

mortgage is a lien or security only, and not in any sense a title, a parol agreement that a mortgage shall stand as security for a future loan is ineffectual to create a lien to secure such loan; the one loaning the money does not acquire any equitable lien or right to charge the new advance upon the land. Stoddard v. Hart (1861) 23 N. Y. 556. The agreement in this case was contemporaneous with the execution of the mortgage, and is not treated as a subsequent modification of a written agreement. agreement by the equitable owner of and which has been conveyed to a third person as security for a debt, that the land shall stand as security for still another debt of the equitable owner, is void and unenforceable. Curle v. Eddy (1856) 24 Mo. 117, 66 Am. Dec. 699. The surplus arising from the sale of real property under deeds of trust given to secure debts described in them cannot be retained as security for debts subsequently made on the strength of a parol engagement. Williams v. Hill (1856) 19 How. (U. S.) 246, 15 L. ed. 570. That a mortgage security cannot be extended to cover new loans is held in McWhorter v. Tyson (1919) 203 Ala. 509, 83 So. 330. But in Re Burns (1909) 171 Fed. 1008, affirmed in (1909) 98 C. C. A. 658, 174 Fed. 1020, where a borrower who had given as security a warranty deed for certain lands, and contemporaneously therewith had taken back from the grantee a bond for title, and who, upon payment of the note given in evidence of the debt, obtained another loan from the grantee, and agreed with him that the deed should stand as security for the larger indebtedness, and with that end in view made certain interlineations in the bond for title, but by inadvertence allowed the sum of money describing the first loan to remain therein, the right of the creditor to a lien upon the land for the larger amount was sustained, as against a subsequent creditor of the debtor with notice of the facts.

The parties to a mortgage cannot, by subsequent parol agreement, substitute lands other than those described in the written instrument, as 17 A.L.R.-2.

this would be conveying land by parol. Castro v. Illies (1854) 13 Tex. 229.

A bond for title having been merged in a judgment, it has been held that the bond cannot be reinstated and the judgment disregarded by parol agreement. Scott v. Sanders (1831) 6 J. J. Marsh. (Ky.) 506.

That the consent of a surety to extend the time of payment of debt need not be in writing was held in Bandler v. Bradley (1910) 110 Minn. 66, 124 N. W. 644.

It is stated in Westchester F. Ins. Co. v. Earle (1876) 33 Mich. 143, that a written insurance policy not within the Statute of Frauds may be changed by parol, thus excepting contracts that are within the Statute of Frauds from such modification.

In some of the leading English cases, and some American cases, there is announced a more limited rule, to the effect that an agreement resting partly in writing and partly in parol cannot be made the basis of an action. See infra. But in other English cases the rule is stated as broadly as the foregoing, and in some, at least, it is expressly held that the oral agreement does not modify the writing; consequently, an action may be maintained on such writing; in such an action the oral agreement cannot be shown, even defensively. It thus appears that the English cases, as a whole, support the broad rule of the American cases.

The broad rule above stated has been held to apply and prevent the subsequent oral modification of a term of a contract implied by law. Thus, where the legal import of a contract for the sale of real estate is that the balance of the purchase price is to be paid presently, the parties cannot, by parol agreement, fix a subsequent specific time for the payment of the balance. Hawkins v. Studdard (1909) 132 Ga. 265, 131 Am. St. Rep. 190, 63 S. E. 852. See Giraud v. Richmond (1846) 2 C. B. 835, 135 Eng. Reprint, 1172, 15 L. J. C. P. N. S. 180, 10 Jur. 360, infra, this subdivision.

Some courts thus announcing the doctrine first above stated have applied it to its fullest extent, and sus

tained an action on the written contract, upon the theory that, the subsequent oral modification being invalid, the written contract is unaffected.

United States.-Reid v. Diamond Plate Glass Co. (1898) 29 C. C. A. 110, 54 U. S. App. 619, 85 Fed. 193.

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

Georgia. Willis v. Fields (1909) 132 Ga. 242, 63 S. E. 828.

Indiana. Burgett v. Loeb (1909) 43 Ind. App. 657, 88 N. E. 346.

Michigan.-Abell v. Munson (1869) 18 Mich. 306, 100 Am. Dec. 165.

Minnesota.-Grand Forks Lumber Co. v. McClure Logging Co. (1908) 103 Minn. 471, 115 N. W. 406.

Missouri.-Warren v. A. B. Mayer Mfg. Co. (1900) 161 Mo. 112, 61 S. W. 644.

Pennsylvania.-Espy v. Anderson (1850) 14 Pa. 308.

Virginia.-Pence v. Life (1905) 104 Va. 518, 52 S. E. 257.

Wisconsin.-Hanson v. Gunderson (1897) 95 Wis. 613, 70 N. W. 827.

See Seymour v. Hughes (1907) 55 Misc. 248, 105 N. Y. Supp. 249, infra, II. c; Carpenter v. Galloway (1881) 73 Ind. 418, infra, this subdivision.

The facts in these cases are varied. In Malkan v. Hemming (1909) 82 Conn. 293, 73 Atl. 752, the vendor in a land contract was held entitled to judgment in an action for specific performance of the contract as originally written, if the vendees failed to prove the modification in writing. By the alleged modification the vendees were to convey a tract of land, instead of giving their note secured by a mortgage, as was provided in the original writing. In Abell v. Munson (1869) 18 Mich. 306, 100 Am. Dec. 165, it was held in an action by a vendee who had paid in full the purchase price for land, to recover damages for failure to convey the land according to the terms of the written contract, that the defendant could not show an oral extension of the time of performance for the purpose of showing that he was not in default. In Espy v. Anderson (1850) 14 Pa. 308, it is held that evidence of a subse

quent parol agreement cannot be received to alter the terms of a written agreement for the sale of land, in an action of covenant by the vendor to recover a part of the purchase price. In Grand Forks Lumber Co. v. McClure Logging Co. (1908) 103 Minn. 471, 115 N. W. 406, it was held that parol evidence was inadmissible to prove that the terms of a contract for the sale of timber had been modified by parol. But see the cases from this jurisdiction, infra. In Burgett v. Loeb (1909) 43 Ind. App. 657, 88 N. E. 346, an action upon a lease as written was sustained, and an attempted oral modification held invalid. A parol agreement between lessee and lessor, under which the lessee obtained additional space at an increased rental, was held not to operate as a waiver, surrender, or cancelation of the prior written lease, in Lamont v. United States Reduction Co. (1915) 191 Ill. App. 446.

In Reid v. Diamond Plate Glass Co. (1898) 29 C. C. A. 110, 54 U. S. App. 619, 85 Fed. 193, evidence of a subsequent parol agreement changing the price at which glass was to be delivered, and also the amount, from that stipulated in a written contract, was held inadmissible in an action by the vendor, who had performed according to the written agreement, to recover a balance due on the purchase price.

In Warren v. A. B. Mayer Mfg. Co. (1900) 161 Mo. 112, 61 S. W. 644, parol evidence in an action for a breach of contract, to show that the manner of payment had been modified by parol, and that the plaintiff had not complied with the terms of the modified agreement, was held inadmissible.

In Hanson v. Gunderson (1897) 95 Wis. 613, 70 N. W. 827, an action by an employee against the members of a copartnership who had contracted by a written agreement relating to the payment of the plaintiff's wages so as to make themselves jointly liable, it was held that evidence of an oral agreement that the partners should be severally liable, each for one half of the wages, could not be introduced in evidence. In Thill

v. Johnston (1910) 60

Wash. 393, 111 Pac. 225, specific performance of a written agreement between the purchasers of property as to division of the property was granted, and the right to show that the contract had been abrogated by a new oral contract denied the defendant.

A contract of employment of real estate brokers, which by the statute is required to be in writing, and which states the amount of the commissions to be received by the brokers, cannot be modified by parol agreement to take property in payment of the commission. Lincoln Realty Co. v. Garden City Land & Immigration Co. (1913) 94 Neb. 346, 143 N. W. 230, Ann. Cas. 1914D, 392.

In Adler v. Friedman (1860) 16 Cal. 138, an action upon a promissory note, the defendant was not allowed to prove a parol agreement reducing the interest. It seems that the interest, even after reduction, was beyond the statutory rate, and under the California statute such a claim must be evidenced by writing, or it is invalid and unenforceable. The court states that the effect of the proof in this case would have been to establish a contract upon which the plaintiff could not recover; that no action could be maintained upon it, and no effect could be given to it as a modification of the terms of the original agreement.

A majority of the cases in which the broad doctrine above stated has been announced have been cases in which the action was upon the contract as modified. The oral modification, being invalid, cannot, of course, form the basis of an action.

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

Georgia.-Simonton v. Liverpool, L. & G. Ins. Co. (1874) 51 Ga. 76; Augusta Southern R. Co. v. Smith & K. Co. (1899) 106 Ga. 864, 33 S. E. 28.

Indiana. Bradley v. Harter (1901) 156 Ind. 499, 60 N. E. 139; Napier Iron Works v. Caldwell & D. Iron Works (1915) 60 Ind. App. 317, 110 N. E. 714; Wellinger v. Crawford (1909) 48 Ind. App. 173, 89 N. E. 892, 93 N. E. 1051.

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Rhode Island.-Ladd v. King (1849) 1 R. I. 224, 51 Am. Dec. 624.

Texas.-Beard v. A. A. Gooch & Son (1910) 62 Tex. Civ. App. 69, 130 S. W. 1022.

Virginia. Heth V. Wooldridge (1828) 6 Rand. 605, 18 Am. Dec. 751.

Thus, in Ladd v. King (R. I.) supra, it is held, in an action by a vendor who had not performed within the time stipulated in the written agreement, but who had performed within the time fixed by an oral extension, that parol evidence of the oral agreement was inadmissible. And in Malkan v. Hemming (Conn.) supra, it was held that a vendor could not maintain an action for specific performance against his vendee, upon a written contract for the sale of land as modified by parol. A purchaser of real estate who did not tender performance until after the expiration of the time limited for the payment of the purchase price in the written contract, time being expressly stated to be of the essence of the contract, cannot maintain a bill to enforce specific performance by the vendor upon proving an oral extension. Abrams v. Eckenrode (Md.) supra. A vendee who has failed to make payments as provided in his contract for the purchase of land cannot maintain an action in damages for failure to convey, upon the written contract as modified by oral agreement extending the time of payment and making some new terms as to the manner of payment. Cook v. Bell (1869) 18 Mich. 387. In Hawkins v. Studdard (1908) 132 Ga. 265, 131 Am. St. Rep. 190, 63 S. E. 852, it is held that an agreement for the sale of land, the legal import of which is that the payment for the same was to be made presently, cannot be modified by a subsequent parol agreement fix

ing the time for payment. It is held in Bradley v. Harter (1901) 156 Ind. 499, 60 N. E. 139, that no damages could be recovered of a vendor of real estate upon his oral agreement, subsequently made, to accept other real estate in payment of the purchase price, instead of money as provided in the writing. It was urged in this case that the subsequent oral agreement did not destroy, vary, or contradict the written contract, but simply provided for an additional mode of paying the purchase money for the real estate; that it did not even seek to change altogether the manner of its payment; that the written contract was left intact as to that as well as to its other provisions, and the purchase money could still be paid according to the terms of the written instrument. The court, however, held, as above stated, that the agreement in question amounted to an oral modification, and was unenforceable. It is held in Rucker v. Harrington (1893) 52 Mo. App. 481, that a vendor of real estate could not maintain an action for damages for breach of his written contract to give good title as modified by a subsequent oral agreement, upon discovery that he was unable to give good title, that there should be a deduction from the purchase price and a delivery of possession earlier than provided in the written contract, and the purchaser would waive the defect in the title and accept it as it was. It is held in Autem v. Mayer Coal Co. (1916) 98 Kan. 379, 158 Pac. 13, that a vendor who has tendered a deed to his vendee for a less estate than that stipulated in the writing is not entitled to recover the purchase price, the court stating: "If we view the case as one in which the parties contracted in writing for one thing, and afterwards agreed orally upon another thing, we encounter the Statute of Frauds." In Jarman v. Westbrook (1910) 134 Ga. 19, 67 S. E. 403, the owner of land had written a letter to a prospective purchaser, offering to sell for a stated price, if accepted and the deal closed within a stated time. Before the time limited the prospective purchaser verbally accepted the

proposal and agreed to meet the owner of the land at a date later than that stipulated in the written proposal, for the purpose of closing the trade. Upon the refusal of the owner to complete the transaction, an action was brought for the specific performance of the contract. In holding that the action could not be maintained, the court states that the parol agreement that the parties should meet on a day subsequent to the time limited in the written option, and there close the trade on terms different from those stated in the written option, does not entitle the plaintiff to specific performance. "The Statute of Frauds requires that a contract for the sale of an interest in lands shall be in writing, and any modification of a written contract required by law to be in writing must also be in writing in order to be valid."

A real-estate broker cannot recover for the sale of a part of an entire tract of land which he was authorized to sell, upon an oral contract modifying the written contract, authorizing him to make sale of the part thus sold. Boyd v. Big Three Ranch Co. (1913) 22 Cal. App. 108, 133 Pac. 623 (obiter). A recovery by a realestate broker for a sale of land at a less price than that provided in the written contract cannot be had on the showing that, by oral agreement, the parties modified the price stated in the writing, such a contract being required by statute to be in writing. Wellinger v. Crawford (1911) 48 Ind. App. 173, 89 N. E. 892, 93 N. E. 1051.

A mortgage of several lots cannot be affected by a subsequent parol agreement that, upon the payment to the mortgagee of a stated sum for each lot, he would release such lot from the mortgage, so as to furnish the basis of an action by a purchaser of such lot from the mortgagor to compel a discharge from the mortgage of the lot thus purchased. Cooper v. Stevens (1815) 1 Johns. Ch. (N. Y.) 425, 7 Am. Dec. 499.

It is held in Napier Iron Works v. Caldwell & D. Iron Works (1915) 60 Ind. App. 317, 110 N. E. 714, that an action in damages for breach of a

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