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written contract for the sale of mer ing that in the case of a contract withchandise could not be maintained upon in the Statute of Frauds it cannot be the written contract as modified by a subsequently modified so as to sustain subsequent oral agreement. In Wal an action upon the writing as qualified ter v. Victor G. Bloede Co. (1901) 94 by the oral variation. Md. 80, 50 Atl. 433, it is held that no It is not clear that there was a subaction can be maintained upon a writ sequent modification in Randolph v. ten contract for the sale of goods, as Frick (1892) 50 Mo. App. 275, bur modified by a parol agreement for an the case is discussed as though there extension of time for the delivery of had been one, and it is stated that a the goods. It is held in Brown v. San contract within the Statute of Frauds born (1875) 21 Minn. 402, that a vend cannot be modified by a subsequent or of straw of certain specifications oral agreement so as to be enforcecannot show an oral modification of able. The plaintiff who brought the the specifications, in an action against action for damages sought to excuse his vendee for refusal to accept. In his nonperformance of the terms of Beard v. A. A. Gooch & Son (1910) 62 the contract by the oral agreement. Tex. Civ. App. 69, 130 S. W. 1022, a

The action in Moore v. Collier purchaser of wood from a tenant who (1910) 133 Ga. 762, 66 S. E. 1080, was had the right to sell wood from a part apparently for breach of the written of the land put in cultivation by him contract as modified by parol, but no is held to have no right to introduce report of this case appears, and it is testimony tending to show a subse not clear that this was the fact. quent parol agreement between the It was contended in Burns v. Fidellandlord and tenant, by which the lat ity Real Estate Co. (1892) 52 Minn. ter was authorized to sell the wood 31, 53 N. W. 1017, a case involving a although he had not complied with sale of brick in payment of which the the terms of the written contract, in vendor was to receive two lots and the an action by such purchaser against balance in cash, that upon an oral the landlord for the value of the wood, modification, made after the delivery which he alleged had been unlawfully of part of the brick, that he was to converted by the landlord.

receive one of the lots in question and It is held in Simonton v. Liverpool, the balance in cash for the brick then L. & G. Ins. Co. (1874) 51 Ga. 76, that delivered, the original contract rean insured cannot maintain an action mained intact, and that a suit to enupon an insurance policy for the de force a conveyance of the lot and restruction of goods in a location other cover the balance of the purchase was than that stipulated in the policy, up a suit on the original contract, from on the oral agreement of an agent of

which the vendor had merely waived the company to change the policy so as or dropped out the provision as to the to correspond with the new location. conveyance of the other lot. After

In Carpenter V. Galloway (1881) stating that this is not true in fact, 73 Ind. 418, an action was brought up

as the vendor claimed and recovered on a note given in part payment of a

under the new oral agreement a larger jack. In the contract of purchase the money judgment than he would be seller agreed to purchase all mules of entitled to under the original contract, the jack's getting, during that season,

the court continues: “It is very clear which complied with certain specifi

that the suit is not on the original cations. This agreement was claimed

contract, but upon a new contract by the purchaser to have been orally

made out by incorporating therewith modified by changing the specifica

certain oral stipulations varying its tions, and for refusal to accept the

terms. If counsel means by 'dropped mules according to the modified agree out' that some of the provisions of ment the purchaser set up a cross

the original contract were 'cut off' or complaint and set-off, asking damages 'dropped out by the subsequent oral for breach of the modified agreement. agreement of the parties, the Statute This relief was denied, the court stat of Frauds is still in the way, for it

makes no difference whether the modi hurst (1851) 3 Macn. & G. 587, 42 Eng. fication consists in adding to or sub Reprint, 386, 21 L. J. Ch. N. S. 497, tracting from the terms of a contract.

15 Jur. 1115, that an agreement withIn either case the terms are altered in the Statute of Frauds "must be in and the contract is a new one.” The writing, and any alteration of it must court further states that the facts also be in writing.” That case, howalleged and found may show a good ever, relies upon Goss v. Nugent as reason for the vendor not having per authority for its statement. The rule formed, and may state a cause of ac is stated thus broadly in Peters v. tion for damages for the breach of Hamilton (1879) 19 N. B. 284, but rethe contract by the defendant, or for liance is placed upon the English compensation in money for the brick

cases. which the vendor delivered, "but they A contract of hiring within the Statdo not make out a case entitling him ute of Frauds because not to be perto specific performance. In other formed within a year, which is conwords he is not entitled to specific per strued to require the salary thereby formance of the original contract, be agreed upon to be paid at the end of cause he himself or his assignor has every year, though not so expressly not performed, and he is not entitled providing, cannot be modified by a to specific performance of the new one subsequent oral agreement of the parbecause it is void under the statute." ties that the salary shall be paid

And see Bradley v. Harter (1901) quarterly, so as to entitle the servant 156 Ind. 499, 60 N. E. 139, supra. to recover on the quarterly basis.

It is sufficient in the cases discussed Giraud v. Richmond (1846) 2 C. B. in the last preceding paragraph, in 835, 135 Eng. Reprint, 1172, 15 L. J. which the action was based upon the C. P. N. S. 180, 10 Jur. 360. modified contract, to hold merely that See Hawkins v. Studdard (1908) no action can be maintained on a con 132 Ga. 265, 131 Am. St. Rep. 190, 63 tract resting partly in writing and S. E. 852. partly in parol, where the contract is Some of the English cases above reone required by the statute to be in ferred to point out that the English writing. Some cases in which the Statute of Frauds does not require action is based upon the modified con all contracts or agreements concerntract announce this limited rule that ing the sale of land to be in writing, an action cannot be based on a con but provides merely that no action tract within the Statute of Frauds, shall be brought unless the contract resting partly in writing and partly is in writing. in parol, without stating the broad In Hoadly v. M'Laine (1834) 10 general proposition that a contract Bing. 485, 131 Eng. Reprint, 982, 4 required by the Statute of Frauds to Moore & S. 340, 3 L. J. C. P. N. S. 162, be in writing cannot be modified by it is held that a carriage maker could parol. Bonicamp v. Starbuck (1910) recover the price of a carriage, al25 Okla. 483, L.R.A.1917B, 141, 106 though a great number of alterations Pac. 839; Price v. McDowell (1915) 52 from and additions to the stipulations Okla. 608, 153 Pac. 649; Dana v. Han of the written agreement were made cock (1858) 30 Vt. 616; Goss v. Nu from time to time. Gaselee, J., states gent (1833) 5 Barn. & Ad. 58, 110 Eng. that “unless we establish as a general Reprint, 713, 2 Nev. & M. 28, 2 L. J. K. principle that every alteration introB. N. S. 127; Harvey V. Grabham duced in the progress of an executory (1836) 5 Ad. & El. 60, 111 Eng. Re contract is to constitute a distinct print, 1089, 2 Harr. & W. 146, 6 Nev. bargain requiring a distinct note in & M. 154, 5 L. J. K. B. N. S. 235. The writing, I am of opinion that there is court here treats the acts of the par no variance in this case, and that there ties as an attempt at waiver of the has been a sufficient memorandum of written provision, but holds that a the contract.” waiver by parol is not binding.

Consequently, where an action at The rule is stated in Emmett v. Dew law is based upon the contract as mod

ified by parol, the action must fail goods to be sent by a ship on a certain because the agreement is not all in voyage, cannot be modified subsewriting. Gossv. Nugent (1833) 5 quently by parol to the effect that the Barn, & Ad. 58, 110 Eng. Reprint, 713, goods are to be sent by the ship on a 2 Nev. & M. 28, 2 L. J. K. B. N. S. 127, subsequent voyage. The vendor was holding that a vendor who had agreed accordingly denied recovery for nonto make good title to the lots which acceptance of the goods. Referring were the subject of the sale could not to the case of Stead v. Dawber, the recover a balance on the purchase court states that "it does not appear price where he was unable to make to proceed altogether upon the time good title to one of the lots, although being an essential part of the conthe purchaser agreed to waive the tract, but on the ground that the connecessity of a good title as to this lot, tract itself, whatever be its terms, if and the vendor afterwards delivered it be such as the law recognizes as a possession of the whole of the lots to contract, cannot be varied by parol.” the purchaser, which he accepted, but See Clark v. Fey (1890) 121 N. Y. refused to pay a balance due on the 470, 24 N. E. 703, infra, II. b. purchase money, and relied on the ob An action of covenant on articles of jection to the title.

agreement by which the plaintiff unIn Price v. McDowell (1915) 52 dertook to build certain houses for Okla. 608, 153 Pac. 649, it was held the defendant on or before a certain that a vendee of real estate who had time, which alleges that the houses made a cash payment on the contract were finished on that time, is not suscould not, upon a tender of perform tained by proof of a parol agreement ance according to the contract as mod that the time might be extended, and ified by a subsequent oral agreement

that the whole work was finished beand refusal of the vendor to accept fore the expiration of the extended such tender, recover the cash pay

time. Littler v. Holland (1790) 3 T. ment.

R. 590, 100 Eng. Reprint, 749. See Bonicamp v. Starbuck (Okla.)

But in Thresh v. Rake (1793) 1 Esp. supra.

(Eng.) 55, a declaration in an action A vendee cannot recover for breach brought to recover a penalty for the of a written contract to convey real

breach of a special agreement to asestate, where the written contract sign premises upon a consideration to required a survey to be made by a

be determined by a fair appraisement named person, and the survey was

made on a certain date, that the apmade by another person who was sub praisement was made and performstituted by oral agreement. Dana v. ance generally had on the part of the Hancock (1858) 30 Vt. 616.

plaintiff, was held supported, although A purchaser of goods to be delivered the evidence showed that the appraiseat a stated date, who has orally agreed

ment had been delayed through the to extend the time for delivery, can

fault of the defendant and performnot recover in assumpsit for damages ance on the agreed day waived by his for breach of the contract of his ven

agents. dor to deliver upon the day agreed

It is stated in the early case of by parol, where he declared upon the

Goss v. Nugent (Eng.) supra, that in writing as modified by the parol agree

such a situation “the written contract ment. Stead v. Dawber (1839) 10 Ad.

is not that which is sought to be en& El. 57, 113 Eng. Reprint, 22, 2 Perry forced; it is a new contract which the & D. 447, 9 L. J. Q. B. N. S. 101. See parties have entered into, and that further discussion of this case, infra. new contract is to be proved partly by

Upon the authority of Stead v. Daw the former written agreement and ber, it is held in Marshall v. Lynn partly by the new verbal agreement; (1840) 6 Mees. & W. 109, 151 Eng. Re the ... contract, therefore, is not print, 342, 9 L. J. Exch. N. S. 126, that a contract entirely in writing." This a written agreement, under § 17 of is true where the modification is of a the Statute of Frauds, for the sale of part of the contract which is itself

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required to be in writing. The opin the acceptance which is averred in the ion, however, is not based upon the first count, though it may be otherwise fact that an essential part of the con as to the second count, which is for tract was involved, but it is stated : goods bargained and sold, not sold and “But our opinion is not formed upon delivered; and it is contended that as the stipulation about the title being it was competent to the parties to have an essential part of the agreement, made two contracts in the first inbut upon the general effect and mean stance,-one in writing, as to the ing of the Statute of Frauds, and that lease; the other not in writing, as to the contract now brought forward by the straw, manure, etc.,-so it was the plaintiff is not wholly a contract competent to them afterwards by in writing."

agreement not in writing to separate It is stated in Marshall v. Lynn into two parts the subject-matters of (1840) 6 Mees. & W. 109, 151 Eng. Re the original agreement, and to substiprint, 342, 9 L. J. Exch. N. S. 126, that tute a new agreement not in writing it is unnecessary to inquire what are as to the straw, manure, etc. We the essential parts of the contract, and think that is not so, but that the agreewhat not, since every part of the con ment, being entire in the first instance, tract in regard to which the parties must so continue, and that it cannot are stipulating must be taken to be be separated or altered otherwise than material,

by writing.

It was attempted And it is also true where the modi to be argued that the original agreefication is of a part which might have ment was performed, inasmuch as one been good of itself without writing. person named by mutual consent Harvey v. Grabham (1836) 5 Ad. & El. might be considered as 'competent 61, 111 Eng. Reprint, 1089. In this persons' respectively appointed by the case there had been an agreement to parties, but we think that this congive a lease, the lessee to pay for struction cannot reasonably be put on straw, fodder, chaff, etc., that were on the words of the agreement, neither the premises at the beginning of the has the plaintiff attempted so to treat lease, the value thereof to be deter it, for he has, both in his first count mined by arbitrators in the usual way. and in his replication to the second Subsequent to the agreement, the les plea, expressly alleged a waiver of and see entered upon possession of the substitution for, and not a compliance premises and also of the straw, etc.

with, the original agreement." It was subsequently proposed by the But see Stark v. Wilson (1814) 3 lessee that the value of the straw, etc.,

Bibb (Ky.) 476, infra, II. b; Dana v. be determined by a stated individual, Hancock (1858) 30 Vt. 616, supra. instead of by the arbitrators, as pro

Compare with Williams v. Moss's vided in the agreement. This was as Empires [1915] 3 K. B. (Eng.) 242, sented to by the lessor, and the ap

8 B. R. C. 636, 84 L. J. K. B. N. S. 1767, praisement made by the individual 113 L. T. N. S. 560, 31 Times L. R. agreed upon. The action was one to 463, infra, II. b. recover the value as appraised, the This rule has been held to apply in lessor stating that he was ready to equity in the absence of fraud, and to grant the lease upon the terms agreed prevent the court granting relief on a upon, and upon the payment to him of contract by way of specific performthe amount of the appraisal. The sec

ance in favor of one who has not comond count was in indebitatus assump plied with the conditions of the writsit for goods and chattels bargained ing, but sought to excuse nonperformand sold, under and by virtue of which ance of an oral variation. Emmett v. the defendant had taken the same to Dewhurst (1851) 3 Macn. & G. 587, 42 his own use. In holding that there Eng. Reprint, 386, 12 L. J. Ch. N. S. could be no recovery of the amount of

497, 15 Jur. 1115, refusing specific perthe appraisal, the court states that formance to a creditor to compel a "here that part might have been good guarantor to execute a writing as of itself without writing, by reason of agreed by him, where the creditor had

not complied with the conditions of new one in its place, then it was void the writing within the time prescribed. by the Statute of Frauds, there being The court states: “It is clear that at neither a part acceptance nor a part law such an agreement as this, namely, payment under it. The court disposes to pay the debt of another person, can

of the second objection by stating not be made, and cannot be varied, by that, by the express provision of the parol, and in this court, unless there Statute of Frauds, it is only necessary, be fraud, the same rule prevails.” in order to make a contract for the

A written agreement for a lease can sale of goods binding upon the parties, not be subsequently modified by parol that there should be either a note or changing the time at which the term memorandum of the bargain in writis to commence. Jordan v. Sawkins ing, or, if there be no writing, that (1791) 1 Ves. Jr. 402, 30 Eng. Reprint, there should be a part payment by 407. The term of the lease was stipu way of earnest, or a part acceptance lated to be for twenty-one years to of the goods. It is then stated that in commence from April; by the modifi the case there existed two indicia cation it was sought to make the lease pointed out by the statute,-namely, commence in June. The court states a contract for sale in writing and a that if the second agreement had been part performance, so that not only that the lease should commence from the literal intention, but the spirit June and continue, not for twenty-one also of the statute, was satisfied. The years absolutely, but for twenty-one court concludes: “The objection then years to determine in April, it would

does not found itself upon a noncomhave been good, because that would pliance with the provisions of that have been no variation, but only waiv statute, but is more properly this, ing a part of the lease. The action that an agreement once made in writwas one to enforce specific perform ing cannot be varied by parol.” In anance of the agreement with the varia swering this objection, the court tions.

states that what has been done is only In Cuff v. Penn (1813) 1 Maule & in performance of the original conS. 21, 105 Eng. Reprint, 8, a case that tract; that the contract remainedhas frequently been cited in support consequently the modification does of the theory that the Statute of

not violate this rule. It thus appears Frauds does not prevent the subse

that the effect of the Statute of Frauds quent modification by parol of a writ upon the subsequent parol modificaten contract, a vendor at the request

tion of a contract required by the of the purchaser forbore to deliver statute to be in writing was not congoods for some time, but at length

sidered in this case in the light in informed the purchaser that he had

which it is now regarded as affecting exceeded a reasonable time and re

contracts. But, whatever may have quested him to name a time for de

been the theory of Cuff v. Penn, it is livery. Upon refusal of the purchaser clearly established

established by subsequent to accept the goods, an action of as

English cases that an oral modificasumpsit was brought for nonaccept

tion of a written contract within the ance. In the second count of the dec

Statute of Frauds is unenforceable. laration the agreement extending the

Some of the English cases expressly time for the delivery of the goods is

state that Cuff v. Penn is overruled by set up and relied upon. Two distinct

the later cases. objections were taken by the defend

Where the modification consists of ant to the introduction of parol evi

an extension of the time for performdence: First, that the case involved ance, the English cases at first fola written contract for the sale and

lowed the rule of Goss v. Nugent. purchase of goods, and could not be Thus, it has been held that a creditor varied by parol; second, that if the cannot compel specific performance by subsequent parol agreement was to be a guarantor of the debtor, of his agreeconsidered, not as varying the writ ment to execute a guaranty, where the ten contract, but as substituting a creditor has not complied with the

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