In

written contract for the sale of merchandise could not be maintained upon the written contract as modified by a subsequent oral agreement. In Walter v. Victor G. Bloede Co. (1901) 94 Md. 80, 50 Atl. 433, it is held that no action can be maintained upon a written contract for the sale of goods, as modified by a parol agreement for an extension of time for the delivery of the goods. It is held in Brown v. Sanborn (1875) 21 Minn. 402, that a vendor of straw of certain specifications cannot show an oral modification of the specifications, in an action against his vendee for refusal to accept. Beard v. A. A. Gooch & Son (1910) 62 Tex. Civ. App. 69, 130 S. W. 1022, a purchaser of wood from a tenant who had the right to sell wood from a part of the land put in cultivation by him is held to have no right to introduce testimony tending to show a subsequent parol agreement between the landlord and tenant, by which the latter was authorized to sell the wood although he had not complied with the terms of the written contract, in an action by such purchaser against the landlord for the value of the wood, which he alleged had been unlawfully converted by the landlord.

It is held in Simonton v. Liverpool, L. & G. Ins. Co. (1874) 51 Ga. 76, that an insured cannot maintain an action upon an insurance policy for the destruction of goods in a location other than that stipulated in the policy, upon the oral agreement of an agent of the company to change the policy so as to correspond with the new location.

In Carpenter v. Galloway (1881) 73 Ind. 418, an action was brought upon a note given in part payment of a jack. In the contract of purchase the seller agreed to purchase all mules of the jack's getting, during that season, which complied with certain specifications. This agreement was claimed by the purchaser to have been orally modified by changing the specifications, and for refusal to accept the mules according to the modified agreement the purchaser set up a cross complaint and set-off, asking damages for breach of the modified agreement. This relief was denied, the court stat

ing that in the case of a contract within the Statute of Frauds it cannot be subsequently modified so as to sustain an action upon the writing as qualified by the oral variation.

It is not clear that there was a subsequent modification in Randolph v. Frick (1892) 50 Mo. App. 275, bu the case is discussed as though there had been one, and it is stated that a contract within the Statute of Frauds cannot be modified by a subsequent oral agreement so as to be enforceable. The plaintiff who brought the action for damages sought to excuse his nonperformance of the terms of the contract by the oral agreement.

The action in Moore V. Collier (1910) 133 Ga. 762, 66 S. E. 1080, was apparently for breach of the written contract as modified by parol, but no report of this case appears, and it is not clear that this was the fact.

It was contended in Burns v. Fidelity Real Estate Co. (1892) 52 Minn. 31, 53 N. W. 1017, a case involving a sale of brick in payment of which the vendor was to receive two lots and the balance in cash, that upon an oral modification, made after the delivery of part of the brick, that he was to receive one of the lots in question and the balance in cash for the brick then delivered, the original contract remained intact, and that a suit to enforce a conveyance of the lot and recover the balance of the purchase was a suit on the original contract, from which the vendor had merely waived or dropped out the provision as to the conveyance of the other lot. After stating that this is not true in fact, as the vendor claimed and recovered under the new oral agreement a larger money judgment than he would be entitled to under the original contract, the court continues: "It is very clear that the suit is not on the original contract, but upon a new contract made out by incorporating therewith certain oral stipulations varying its terms. If counsel means by 'dropped out' that some of the provisions of the original contract were 'cut off' or 'dropped out' by the subsequent oral agreement of the parties, the Statute of Frauds is still in the way, for it

makes no difference whether the modification consists in adding to or subtracting from the terms of a contract. In either case the terms are altered and the contract is a new one." The court further states that the facts alleged and found may show a good reason for the vendor not having performed, and may state a cause of action for damages for the breach of the contract by the defendant, or for compensation in money for the brick which the vendor delivered, "but they do not make out a case entitling him to specific performance. In other words he is not entitled to specific performance of the original contract, because he himself or his assignor has not performed, and he is not entitled to specific performance of the new one because it is void under the statute." And see Bradley v. Harter (1901) 156 Ind. 499, 60 N. E. 139, supra.

It is sufficient in the cases discussed in the last preceding paragraph, in which the action was based upon the modified contract, to hold merely that no action can be maintained on a contract resting partly in writing and partly in parol, where the contract is one required by the statute to be in writing. Some cases in which the action is based upon the modified contract announce this limited rule that an action cannot be based on a contract within the Statute of Frauds, resting partly in writing and partly in parol, without stating the broad general proposition that a contract required by the Statute of Frauds to be in writing cannot be modified by parol. Bonicamp v. Starbuck (1910) 25 Okla. 483, L.R.A.1917B, 141, 106 Pac. 839; Price v. McDowell (1915) 52 Okla. 608, 153 Pac. 649; Dana v. Hancock (1858) 30 Vt. 616; Goss v. Nugent (1833) 5 Barn. & Ad. 58, 110 Eng. Reprint, 713, 2 Nev. & M. 28, 2 L. J. K. B. N. S. 127; Harvey v. Grabham (1836) 5 Ad. & El. 60, 111 Eng. Reprint, 1089, 2 Harr. & W. 146, 6 Nev. & M. 154, 5 L. J. K. B. N. S. 235. The court here treats the acts of the parties as an attempt at waiver of the written provision, but holds that a waiver by parol is not binding.

The rule is stated in Emmett v. Dew

hurst (1851) 3 Macn. & G. 587, 42 Eng. Reprint, 386, 21 L. J. Ch. N. S. 497, 15 Jur. 1115, that an agreement within the Statute of Frauds "must be in writing, and any alteration of it must also be in writing." That case, however, relies upon Goss v. Nugent as authority for its statement. The rule is stated thus broadly in Peters v. Hamilton (1879) 19 N. B. 284, but reliance is placed upon the English

cases.

A contract of hiring within the Statute of Frauds because not to be performed within a year, which is construed to require the salary thereby agreed upon to be paid at the end of every year, though not so expressly providing, cannot be modified by a subsequent oral agreement of the parties that the salary shall be paid quarterly, so as to entitle the servant to recover on the quarterly basis. Giraud v. Richmond (1846) 2 C. B. 835, 135 Eng. Reprint, 1172, 15 L. J. C. P. N. S. 180, 10 Jur. 360.

See Hawkins v. Studdard (1908) 132 Ga. 265, 131 Am. St. Rep. 190, 63 S. E. 852.

Some of the English cases above referred to point out that the English Statute of Frauds does not require all contracts or agreements concerning the sale of land to be in writing, but provides merely that no action shall be brought unless the contract is in writing.

In Hoadly v. M'Laine (1834) 10 Bing. 485, 131 Eng. Reprint, 982, 4 Moore & S. 340, 3 L. J. C. P. N. S. 162, it is held that carriage maker could recover the price of a carriage, although a great number of alterations from and additions to the stipulations of the written agreement were made from time to time. Gaselee, J., states that "unless we establish as a general principle that every alteration introduced in the progress of an executory contract is to constitute a distinct bargain requiring a distinct note in writing, I am of opinion that there is no variance in this case, and that there has been a sufficient memorandum of the contract."

Consequently, where an action at law is based upon the contract as mod

ified by parol, the action must fail because the agreement is not all in writing. Goss v. Nugent (1833) 5 Barn. & Ad. 58, 110 Eng. Reprint, 713, 2 Nev. & M. 28, 2 L. J. K. B. N. S. 127, holding that a vendor who had agreed to make good title to the lots which were the subject of the sale could not recover a balance on the purchase price where he was unable to make good title to one of the lots, although the purchaser agreed to waive the necessity of a good title as to this lot, and the vendor afterwards delivered possession of the whole of the lots to the purchaser, which he accepted, but refused to pay a balance due on the purchase money, and relied on the objection to the title.

In Price v. McDowell (1915) 52 Okla. 608, 153 Pac. 649, it was held that a vendee of real estate who had made a cash payment on the contract could not, upon a tender of performance according to the contract as modified by a subsequent oral agreement and refusal of the vendor to accept such tender, recover the cash payment.

See Bonicamp v. Starbuck (Okla.) supra.

A vendee cannot recover for breach of a written contract to convey real estate, where the written contract required a survey to be made by a named person, and the survey was made by another person who was substituted by oral agreement. Dana v. Hancock (1858) 30 Vt. 616.

A purchaser of goods to be delivered at a stated date, who has orally agreed to extend the time for delivery, cannot recover in assumpsit for damages for breach of the contract of his vendor to deliver upon the day agreed by parol, where he declared upon the writing as modified by the parol agreement. Stead v. Dawber (1839) 10 Ad. & El. 57, 113 Eng. Reprint, 22, 2 Perry & D. 447, 9 L. J. Q. B. N. S. 101. See further discussion of this case, infra.

Upon the authority of Stead v. Dawber, it is held in Marshall v. Lynn (1840) 6 Mees. & W. 109, 151 Eng. Re-' print, 342, 9 L. J. Exch. N. S. 126, that a written agreement, under § 17 of the Statute of Frauds, for the sale of

goods to be sent by a ship on a certain voyage, cannot be modified subsequently by parol to the effect that the goods are to be sent by the ship on a subsequent voyage. The vendor was accordingly denied recovery for nonacceptance of the goods. Referring to the case of Stead v. Dawber, the court states that "it does not appear to proceed altogether upon the time being an essential part of the contract, but on the ground that the contract itself, whatever be its terms, if it be such as the law recognizes as a contract, cannot be varied by parol."

See Clark v. Fey (1890) 121 N. Y. 470, 24 N. E. 703, infra, II. b.

An action of covenant on articles of agreement by which the plaintiff undertook to build certain houses for the defendant on or before a certain time, which alleges that the houses were finished on that time, is not sustained by proof of a parol agreement that the time might be extended, and that the whole work was finished before the expiration of the extended time. Littler v. Holland (1790) 3 T. R. 590, 100 Eng. Reprint, 749.

But in Thresh v. Rake (1793) 1 Esp. (Eng.) 55, a declaration in an action brought to recover a penalty for the breach of a special agreement to assign premises upon a consideration to be determined by a fair appraisement made on a certain date, that the appraisement was made and performance generally had on the part of the plaintiff, was held supported, although the evidence showed that the appraisement had been delayed through the fault of the defendant and performance on the agreed day waived by his agents.

It is stated in the early case of Goss v. Nugent (Eng.) supra, that in such a situation "the written contract is not that which is sought to be enforced; it is a new contract which the parties have entered into, and that new contract is to be proved partly by the former written agreement and partly by the new verbal agreement; the . . contract, therefore, is not a contract entirely in writing." This is true where the modification is of a part of the contract which is itself

required to be in writing. The opinion, however, is not based upon the fact that an essential part of the contract was involved, but it is stated: "But our opinion is not formed upon the stipulation about the title being an essential part of the agreement, but upon the general effect and meaning of the Statute of Frauds, and that the contract now brought forward by the plaintiff is not wholly a contract in writing."

It is stated in Marshall v. Lynn (1840) 6 Mees. & W. 109, 151 Eng. Reprint, 342, 9 L. J. Exch. N. S. 126, that it is unnecessary to inquire what are the essential parts of the contract, and what not, since every part of the contract in regard to which the parties are stipulating must be taken to be material.

And it is also true where the modification is of a part which might have been good of itself without writing. Harvey v. Grabham (1836) 5 Ad. & El, 61, 111 Eng. Reprint, 1089. In this case there had been an agreement to give a lease, the lessee to pay for straw, fodder, chaff, etc., that were on the premises at the beginning of the lease, the value thereof to be determined by arbitrators in the usual way. Subsequent to the agreement, the lessee entered upon possession of the premises and also of the straw, etc. It was subsequently proposed by the lessee that the value of the straw, etc., be determined by a stated individual, instead of by the arbitrators, as provided in the agreement. This was assented to by the lessor, and the appraisement made by the individual agreed upon. The action was one to recover the value as appraised, the lessor stating that he was ready to grant the lease upon the terms agreed upon, and upon the payment to him of the amount of the appraisal. The second count was in indebitatus assumpsit for goods and chattels bargained and sold, under and by virtue of which the defendant had taken the same to his own use. In holding that there could be no recovery of the amount of the appraisal, the court states that "here that part might have been good of itself without writing, by reason of

the acceptance which is averred in the first count, though it may be otherwise as to the second count, which is for goods bargained and sold, not sold and delivered; and it is contended that as it was competent to the parties to have made two contracts in the first instance,-one in writing, as to the lease; the other not in writing, as to the straw, manure, etc., so it was competent to them afterwards by agreement not in writing to separate into two parts the subject-matters of the original agreement, and to substitute a new agreement not in writing as to the straw, manure, etc. We think that is not so, but that the agreement, being entire in the first instance, must so continue, and that it cannot be separated or altered otherwise than by writing. It was attempted to be argued that the original agreement was performed, inasmuch as one person named by mutual consent might be considered as 'competent persons' respectively appointed by the parties, but we think that this construction cannot reasonably be put on the words of the agreement, neither has the plaintiff attempted so to treat it, for he has, both in his first count and in his replication to the second plea, expressly alleged a waiver of and substitution for, and not a compliance with, the original agreement."

But see Stark v. Wilson (1814) 3 Bibb (Ky.) 476, infra, II. b; Dana v. Hancock (1858) 30 Vt. 616, supra.

Compare with Williams v. Moss's Empires [1915] 3 K. B. (Eng.) 242, 8 B. R. C. 636, 84 L. J. K. B. N. S. 1767, 113 L. T. N. S. 560, 31 Times L. R. 463, infra, II. b.

This rule has been held to apply in equity in the absence of fraud, and to prevent the court granting relief on a contract by way of specific performance in favor of one who has not complied with the conditions of the writing, but sought to excuse nonperformance of an oral variation. Emmett v. Dewhurst (1851) 3 Macn. & G. 587, 42 Eng. Reprint, 386, 12 L. J. Ch. N. S. 497, 15 Jur. 1115, refusing specific performance to a creditor to compel a guarantor to execute a writing as agreed by him, where the creditor had

not complied with the conditions of the writing within the time prescribed. The court states: "It is clear that at law such an agreement as this, namely, to pay the debt of another person, cannot be made, and cannot be varied, by parol, and in this court, unless there be fraud, the same rule prevails."

A written agreement for a lease cannot be subsequently modified by parol changing the time at which the term is to commence. Jordan v. Sawkins (1791) 1 Ves. Jr. 402, 30 Eng. Reprint, 407. The term of the lease was stipulated to be for twenty-one years to commence from April; by the modification it was sought to make the lease commence in June. The court states that if the second agreement had been that the lease should commence from June and continue, not for twenty-one years absolutely, but for twenty-one years to determine in April, it would have been good, because that would have been no variation, but only waiving a part of the lease. The action was one to enforce specific performance of the agreement with the variations.

In Cuff v. Penn (1813) 1 Maule & S. 21, 105 Eng. Reprint, 8, a case that has frequently been cited in support of the theory that the Statute of Frauds does not prevent the subsequent modification by parol of a written contract, a vendor at the request of the purchaser forbore to deliver goods for some time, but at length informed the purchaser that he had exceeded a reasonable time and requested him to name a time for delivery. Upon refusal of the purchaser to accept the goods, an action of assumpsit was brought for nonacceptance. In the second count of the declaration the agreement extending the time for the delivery of the goods is set up and relied upon. Two distinct objections were taken by the defendant to the introduction of parol evidence: First, that the case involved a written contract for the sale and purchase of goods, and could not be varied by parol; second, that if the subsequent parol agreement was to be considered, not as varying the written contract, but as substituting a

new one in its place, then it was void by the Statute of Frauds, there being neither a part acceptance nor a part payment under it. The court disposes of the second objection by stating that, by the express provision of the Statute of Frauds, it is only necessary, in order to make a contract for the sale of goods binding upon the parties, that there should be either a note or memorandum of the bargain in writing, or, if there be no writing, that there should be a part payment by way of earnest, or a part acceptance of the goods. It is then stated that in the case there existed two indicia pointed out by the statute, namely, a contract for sale in writing and a part performance,-so that not only the literal intention, but the spirit also of the statute, was satisfied. The court concludes: "The objection then does not found itself upon a noncompliance with the provisions of that statute, but is more properly thisthat an agreement once made in writing cannot be varied by parol." In answering this objection, the court states that what has been done is only in performance of the original contract; that the contract remainedconsequently the modification does not violate this rule. It thus appears that the effect of the Statute of Frauds upon the subsequent parol modification of a contract required by the statute to be in writing was not considered in this case in the light in which it is now regarded as affecting contracts. But, whatever may have been the theory of Cuff v. Penn, it is clearly established by subsequent English cases that an oral modification of a written contract within the Statute of Frauds is unenforceable. Some of the English cases expressly state that Cuff v. Penn is overruled by the later cases.

Where the modification consists of an extension of the time for performance, the English cases at first followed the rule of Goss v. Nugent. Thus, it has been held that a creditor cannot compel specific performance by a guarantor of the debtor, of his agreement to execute a guaranty, where the creditor has not complied with the