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fra, subd. V.; and Creigh v. Boggs stances that would work an estoppel (1881) 19 W. Va. 240, supra, subd. I. against the defendant. See further,

The facts in the foregoing cases are infra, V., especially New York cases. varied; and this is true as to other A vendor of wine cannot defend an cases which lend indirect support to action in damages for refusal to dethe above rule. It was held in Pence liver, by showing an oral agreement v. Life (1905) 104 Va. 518, 52 S. E. that the written contract, which pro257, that a contract for the sale of vided for six days' credit, should be land cannot be modified by a subse- modified by payments being made in quent parol agreement, in the absence cash, and the refusal of the vendee of some act as part performance to to pay in cash. Maddaloni Olive Oil take it out of the operation of the Co. V. Aquino (1920) 191 App. Div. Statute of Frauds. A stipulation in 51, 180 N. Y. Supp. 724. An agreea deed that it was made upon condi- ment by a vendor of brick to receive tion that the grantee live with and in payment of the brick a certain care for the grantor during the re- amount in cash, and the balance in mainder of his life cannot be waived two lots, cannot when part of the by parol. Culy v. Upham (1903) 135 brick has been delivered, and the purMich. 131, 106 Am. St. Rep. 388, 97 chaser has refused to receive any N. W. 405. That a purchaser of land more, be modified orally by the parcannot be compelled to take and pay ties, to the effect that the purchaser for land not embraced within the should pay for the brick already dewritten contract, but included in a livered at the contract price, the purparol agreement, is held in Wiggin- chaser to take one of the lots at the ton v. Ewell (1888) 10 Ky. L. Rep. stipulated price, and to pay the bal383, 9 S. W. 285. In the headnote to ance in cash. The action in this case the case the parol agreement is stated was brought to secure a conveyance to have been a subsequent agreement. of the lot agreed upon in the oral Nothing is said as to this in the opin- agreement, and recover the balance of ion, nor is it stated anywhere to have the purchase price. Burns v. Fidelity been a modification of the original Real Estate Co. (1892) 52 Minn. 31, contract. A subsequent oral agreement 53 N. W. 1017. between the parties to a contract for An existing lease for years cannot the sale of timber, as to what had be turned into a lease at will by verbeen growth of the timber between bal agreement. Den ex dem. Mayberthe date of the contract and of the ry v. Johnson (1835) 15 N. J. L. 116. cutting, is stated in Whitfield v. Row- In Meyers v. Knights of Pythias land Lumber Co. (1910) 152 N. C. 211, Bronx Temple Asso. (1920) 194 App. 67 S. E. 512, to be an oral conveyance Div. 405, 185 N. Y. Supp. 436, it was of an interest in realty.

held not competent to modify a lease A verbal modification of a written of real estate for the term of twentyagreement for the purchase and sale one years, and under seal, by a parol of goods is invalid under the Statute agreement. Nothing is said as to the of Frauds. Schultz v. Bradley (1874) Statute of Frauds, however. A sup57 N. Y. 646. By the verbal agree- plementary verbal contract, by which ment the parties sought to increase the lessor of a coal mine agreed to the amount of the goods to be deliv- pay an additional royalty for the coal ered under the contract. In Hill v. mined, was held invalid, where neiBlake (1884) 97 N. Y. 216, it was held ther of the parties had taken any acthat a vendor of iron, who had failed tion upon it; but the court does not to deliver within the time stipulated consider this as a modification of the by the written contract, but had of- original lease. Crawford v. Wick fered to deliver within the time pro- (1868) 18 Ohio St. 190, 98 Am. Dec. vided by the oral extension, could not 103, 8 Mor. Min. Rep. 541. maintain an action for breach of con- The surrender of a written lease by tract against his vendee for failure to parol is discussed in the annotation accept the goods sold. The court in 4 A.L.R. 666. states that there were no circum- Where the doctrine prevails that a


mortgage is a lien or security only, this would be conveying land by parol. and not in any sense a title, a parol Castro v. Illies (1854) 13 Tex. 229. agreement that a mortgage shall A bond for title having been merged stand as security for a future loan is in a judgment, it has been held that ineffectual to create a lien to secure the bond cannot be reinstated and the such loan; the one loaning the money judgment disregarded by parol agreedoes not acquire any equitable lien or ment. Scott v. Sanders (1831) 6 J. J. right to charge the new advance upon Marsh. (Ky.) 506. the land. Stoddard v. Hart (1861) 23 That the consent of a surety to exN. Y. 556. The agreement in this tend the time of payment of debt need case was contemporaneous with the not be in writing was held in Bandler execution of the mortgage, and is not v. Bradley (1910) 110 Minn. 66, 124 N. treated as a subsequent modification W. 644. of a written agreement. An oral It is stated in Westchester F. Ins. agreement by the equitable owner of Co. v. Earle (1876) 33 Mich. 143, that and which has been conveyed to a written insurance policy not within third person as security for a debt, the Statute of Frauds may be changed that the land shall stand as security by parol, thus excepting contracts for still another debt of the equitable that are within the Statute of Frauds owner, is void and unenforceable. from such modification. Curle v. Eddy (1856) 24 Mo. 117, 66 In some of the leading English Am. Dec. 699. The surplus arising

cases, and

some American cases, from the sale of real property under there is announced a more limited deeds of trust given to secure debts rule, to the effect that an agreement described in them cannot be retained resting partly in writing and partly as security for debts subsequently in parol cannot be made the basis of made on the strength of a parol en- an action. See infra. But in other gagement. Williams v. Hill (1856) English cases the rule is stated as 19 How. (U. S.) 246, 15 L. ed. 570. broadly as the foregoing, and in some, That a mortgage security cannot be at least, it is expressly held that the extended to cover new loans is held in oral agreement does not modify the McWhorter v. Tyson (1919) 203 Ala. writing; consequently, an action may 509, 83 So. 330. But in Re Burns be maintained on such writing; in (1909) 171 Fed. 1008, affirmed in such an action the oral agreement (1909) 98 C. C. A. 658, 174 Fed. 1020, cannot be shown, even defensively. It where a borrower who had given as thus appears that the English cases, security a warranty deed for certain as a whole, support the broad rule of lands, and contemporaneously there- the American cases. with had taken back from the grantee The broad rule above stated has a bond for title, and who, upon pay- been held to apply and prevent the ment of the note given in evidence of subsequent oral modification of a the debt, obtained another loan from term of a contract implied by law. the grantee, and agreed with him that Thus, where the legal import of a the deed should stand as security for contract for the sale of real estate the larger indebtedness, and with that is that the balance of the purchase end in view made certain interlinea- price is to be paid presently, the partions in the bond for title, but by in- ties cannot, by parol agreement, fix a advertence allowed the sum of money subsequent specific time for the paydescribing the first loan to remain ment of the balance. Hawkins therein, the right of the creditor to a Studdard (1909) 132 Ga. 265, 131 Am. lien upon the land for the larger St. Rep. 190, 63 S. E. 852. See Giraud amount was sustained, as against a v. Richmond (1846) 2 C. B. 835, 135 subsequent creditor of the debtor Eng. Reprint, 1172, 15 L. J. C. P. N. with notice of the facts.

S. 180, 10 Jur. 360, infra, this subThe parties to a mortgage cannot, division. by subsequent parol agreement, sub- Some courts thus announcing the stitute lands other than those de- doctrine first above stated have apscribed in the written instrument, as plied it to its fullest extent, and sus

17 A.L.R.-2.


tained an action on the written con- quent parol agreement cannot be retract, upon the theory that, the ceived to alter the terms of a written subsequent oral modification being agreement for the sale of land, in an invalid, the written contract is unaf- action of covenant by the vendor to fected.

recover a part of the purchase price. United States.—Reid v. Diamond In Grand Forks Lumber Co. v. McPlate Glass Co. (1898) 29 C. Č. A. Clure Logging Co. (1908) 103 Minn. 110, 54 U. S. App. 619, 85 Fed. 193. 471, 115 N. W. 406, it was held that

Connecticut.-Malkan v. Hemming parol evidence was inadmissible to (1909) 82 Conn. 293, 73 Atl. 752. prove that the terms of a contract for

Georgia.- Willis v. Fields (1909) the sale of timber had been modified 132 Ga. 242, 63 S. E. 828.

by parol. But see the cases from Indiana.-Burgett v. Loeb (1909) this jurisdiction, infra. In Burgett v. 43 Ind. App. 657, 88 N. E. 346.

Loeb (1909) 43 Ind. App. 657, 88 N. E. Michigan.-Abell v. Munson (1869) 346, an action upon a lease as written 18 Mich. 306, 100 Am. Dec. 165.

was sustained, and an attempted oral Minnesota.—Grand Forks Lumber modification held invalid. A parol Co. v. McClure Logging Co. (1908) agreement between lessee and lessor, 103 Minn. 471, 115 N. W. 406.

under which the lessee obtained adMissouri.-Warren v. A. B. Mayer ditional space at an increased rental, Mfg. Co. (1900) 161 Mo. 112, 61 S. W. was held not to operate as a waiver, 644.

surrender, or cancelation of the prior Pennsylvania.-Espy V. Anderson written lease, in Lamont v. United (1850) 14 Pa. 308.

States Reduction Co. (1915) 191 Ill. Virginia. Pence v. Life (1905) 104 App. 446. Va. 518, 52 S. E. 257.

In Reid v. Diamond Plate Glass Co. Wisconsin.—Hanson v. Gunderson (1898) 29 C. C. A. 110, 54 U. S. App. (1897) 95 Wis. 613, 70 N. W. 827. 619, 85 Fed. 193, evidence of a sub

See Seymour v. Hughes (1907) 55 sequent parol agreement changing the Misc. 248, 105 N. Y. Supp. 249, infra, price at which glass was to be delivII. c; Carpenter v. Galloway (1881) ered, and also the amount, from that 73 Ind. 418, infra, this subdivision. stipulated in a written contract, was

The facts in these cases are varied. held inadmissible in an action by the In Malkan v. Hemming (1909) 82 vendor, who had performed according Conn. 293, 73 Atl. 752, the vendor in to the written agreement, to recover a a land contract was held entitled to balance due on the purchase price. judgment in an action for specific In Warren v. A. B. Mayer Mfg. Co. performance of the contract as origi- (1900) 161 Mo. 112, 61 S. W. 644, parol nally written, if the vendees failed to evidence in an action for a breach of prove the modification in writing. By contract, to show that the manner of the alleged modification the vendees payment had been modified by parol, were to convey a tract of land, instead and that the plaintiff had not comof giving their note secured by a plied with the terms of the modified mortgage, as was provided in the

agreement, was held inadmissible. original writing. In Abell v. Munson In Hanson v. Gunderson (1897) 95 (1869) 18 Mich. 306, 100 Am. Dec. Wis. 613, 70 N. W. 827, an action by 165, it was held in an action by a an employee against the members of vendee who had paid in full the pur- a copartnership who had contracted chase price for land, to recover dam- by a written agreement relating to the ages for failure to convey the land payment of the plaintiff's wages so according to the terms of the written as to make themselves jointly liable, contract, that the defendant could not it was held that evidence of an oral show an oral extension of the time of agreement that the partners should performance for the purpose of show- be severally liable, each for one half ing that he was not in default. In of the wages, could not be introduced Espy v. Anderson (1850) 14 Pa. 308, in evidence. it is held that evidence of a subse- 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 defend. ant.

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. 19140, 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.

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

Minnesota. Brown Sanborn (1875) 21 Minn. 402.

Missouri.-Rucker v. Harrington (1893) 52 Mo. App. 481.

New York.-Hill v. Blake (1884) 97 N. Y. 216.

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 torms 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 proposal and agreed to meet the ownin Bradley v. Harter (1901) 156 Ind. er of the land at a date later than that 499, 60 N. E. 139, that no damages could stipulated in the written proposal, for be recovered of a vendor of real estate the purpose of closing the trade. Upupon his oral agreement, subsequent- on the refusal of the owner to comly made, to accept other real estate plete the transaction, an action was in payment of the purchase price, in- brought for the specific performance stead of money as provided in the of the contract. In holding that the writing. It was urged in this case action could not be maintained, the that the subsequent oral agreement court states that the parol agreement did not destroy, vary, or contradict that the parties should meet on a day the written contract, but simply pro- subsequent to the time limited in the vided for an additional mode of pay- written option, and there close the ing the purchase money for the real trade on terms different from those estate; that it did not even seek to stated in the written option, does not change altogether the manner of its entitle the plaintiff to specific perpayment; that the written contract formance. “The Statute of Frauds was left intact as to that as well as to requires that a contract for the sale its other provisions, and the purchase of an interest in lands shall be in money could still be paid according to writing, and any modification of a the terms of the written instrument. written contract required by law to be The court, however, held, as above in writing must also be in writing in stated, that the agreement in question order to be valid." amounted to an oral modification, and A real-estate broker cannot recover was unenforceable. It is held in for the sale of a part of an entire Rucker v. Harrington (1893) 52 Mo. tract of land which he was authorApp. 481, that a vendor of real estate ized to sell, upon an oral contract could not maintain an action for dam- modifying the written contract, auages for breach of his written con- thorizing him to make sale of the part tract to give good title as modified by thus sold. Boyd v. Big Three Ranch a subsequent oral agreement, upon Co. (1913) 22 Cal. App. 108, 133 Pac. discovery that he was unable to give 623 (obiter). A recovery by a realgood title, that there should be a de- estate broker for a sale of land at a duction from the purchase price and less price than that provided in the a delivery of possession earlier than written contract cannot be had on the provided in the written contract, and showing that, by oral agreement, the the purchaser would waive the defect parties modified the price stated in in the title and accept it as it was. the writing, such a contract being It is held in Autem v. Mayer Coal required by statute to be in writing. Co. (1916) 98 Kan. 379, 158 Pac. 13, Wellinger v. Crawford (1911) 48 Ind. that a vendor who has tendered a deed App. 173, 89 N. E. 892, 93 N. E. 1051. to his vendee for a less estate than A mortgage of several lots cannot that stipulated in the writing is not be affected by a subsequent parol entitled to recover the purchase price, agreement that, upon the payment to the court stating: “If we view the the mortgagee of a stated sum for case as one in which the parties con- each lot, he would release such lot tracted in writing for one thing, and from the mortgage, so as to furnish afterwards agreed orally upon an- the basis of an action by a purchaser other thing, we encounter the Statute of such lot from the mortgagor to of Frauds." In Jarman v. Westbrook compel a discharge from the mort(1910) 134 Ga. 19, 67 S. E. 403, the gage of the lot thus purchased. Coopowner of land had written a letter to v. Stevens (1815) 1 Johns. Ch. a prospective purchaser, offering to (N. Y.) 425, 7 Am. Dec. 499. sell for a stated price, if accepted and It is held in Napier Iron Works v. the deal closed within a stated time. Caldwell & D. Iron Works (1915) 60 Before the time limited the prospec- Ind. App. 317, 110 N. E. 714, that an tive purchaser verbally accepted the action in damages for breach of a


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