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conditions of the agreement within

livery of the goods and payment the time prescribed. Emmet v. Dew- therefor. Stead v. Dawber (1839) 10 hurst (Eng.) supra. Any oral agree- Ad. & El. 57, 113 Eng. Reprint, 22, 2 ment extending the time is ineffectual. Perry & D. 447, 9 L. J. Q. B. N. S. So a purchaser of a leasehold interest 101. See Marshall v. Lynn (1840) 6 in land may recover an advance pay- Mees. & W. 109, 151 Eng. Reprint, ment, where the vendor defaulted in 342, 9 L. J. Exch. N. S. 126, where performance on the day stipulated in there was what amounted to a substithe writing, notwithstanding an oral tuted contract. agreement to extend time. Evidence But it has been held in England that of the oral agreement is held inadmis- an action upon the written agreement sible. Stowell v. Robinson (1837) 3 for failure to accept goods, by a vendBing. N. C. 928, 132 Eng. Reprint, 668. or who, at the request of the purchasAt the day agreed upon neither of the ers, allowed delivery of the goods sold parties was ready to carry the contract to stand over, cannot be defeated by into effect, not only on account of ob- showing the oral agreement. Hickjections that were taken to the title, man v. Haynes (1875) L. R. 10 C. P. which were then in a course of being (Eng.) 598. The court, after reviewremoved, but also because the brokers ing the English cases, concludes that had not completed their valuation at

“the result of these cases appears to that time. Subsequently to the day be that neither a plaintiff nor a deagreed upon, both the parties were en- fendant can, at law, avail himself of deavoring to procure the license from a parol agreement to vary or enlarge the ground landlord for the assign- the time for performing a contract ment of the lease. Some objection previously entered into in writing, being raised on this ground, the pur- and required so to be by the Statute chaser wrote the vendor that he con- of Frauds. But so far as this princisidered the contract at an end, and ple has any application to the present demanded a return of the deposit. case, it appears to us rather to preWithin a few days after this letter, clude the defendants from setting up and within what appears to the court an agreement to enlarge the time for to be a reasonable time for that pur- delivery in answer to the plaintiff's pose, the objection would have been demand, than to prevent the plaintiff met, “so that the question, as from suing on the original contract before stated, is this,-Can the day for a breach of it.” for the completion of the purchase of

The distinction between Stead V. an interest in land inserted in a writ- Dawber and Hickman v. Haynes is an ten contract be waived by a parol elusive one, and rests more in the agreement, and another day be sub- theory of the respective actions in stituted in its place, so as to bind the these cases than in any difference in parties?—and we are of opinion that facts between them. The distinction it cannot." The court states that this as expressed by the court in Hickman "is virtually and substantially to al- v. Haynes is perhaps as logical a one low an action to be brought on an as can be made, and is as follows: "In agreement relating to the sale of land Stead v. Dawber there was a written partly in writing signed by the par- agreement for the delivery of goods ties, and partly not in writing, but on a particular day and a subsequent by parol only, and amounts to a con- verbal agreement for their delivery travention of the Statute of Frauds." on a later specified day, and the court A purchaser of goods who has orally came to the conciusion that the parties extended the time for the delivery intended to substitute the later verbal · thereof cannot subsequently recover agreement for the previous written damages for nondelivery, where the agreement; but in the case now before oral extension amounts to the substi- the court there was no fresh agreetution of a new contract for the writ- ment at all for the delivery of the 25 ten one, the same in all respects as tons, which can be regarded as havthe written one except as to the de- ing been substituted for the original


written contract. There was nothing N. S. 695, 35 L. T. N. S. 263, that a more than a waiver by the defendants vendor who had failed to deliver the of a delivery by the plaintiff in June goods at the time stipulated in the of the last 25 tons of iron; and it writing could not recover damages for should seem that in Stead v. Dawber nonacceptance thereof upon

the the court would have been in favor strength of a subsequent oral agreeof the plaintiff if they had come to ment. The court states that, in such the conclusion that there had been no a situation, the vendors are logically substitution of one agreement for an- driven to rely upon the subsequent other.” In Hickman v. Haynes, the requests of the purchaser, either as a extension of time was granted at the proposed alteration of a term of the request of the defendant purchaser, original contract, or as a request upon and the breach alleged in the action which to hang a new contract to acby the vendor was a refusal to accept cept; but, as the request was merely the goods at the time agreed upon in verbal, the undertaking sought to be the written contract. In a subsequent founded on it cannot be enforced. case, the court speaks of such a situ- But in Marshall v. Lynn (Eng.) suation, and states that "where the vend- pra, a vendor who was seeking to reor, being ready to deliver within the cover in assumpsit for nonacceptance agreed time, is shown to have with- of goods sold alleged that he was ready held his offer to deliver until after the and willing to deliver upon the time agreed time, in consequence of a re- fixed in the writing, and tendered and quest to him to do so made by the offered to perform at that time, but, at vendee before the expiration of the the request of the purchaser, delayed agreed time, and where, after the ex- performance according to an oral piration of the agreed time and within agreement. Recovery was denied in a reasonable time, the vendor proposes this case. to deliver and the vendee refuses to But the English cases have gone accept, the vendor can recover dam- farther than to hold merely that no ages. He can properly aver and prove action can be maintained on an agreethat he was ready and willing to de- ment resting partly in writing and liver according to the terms of the partly in parol. It has been expressly original contract. ... In such case held that the written agreement is not it is said that the original contract is rescinded by an oral one extending the unaltered, and that the arrangement time for the performance thereof, or has reference only to the mode of per- modifying it in some other particular; forming it. But if the alteration of consequently an action may be mainthe period of delivery were made at tained thereon. In Noble v. Ward the request of the vendor, though such (1866) L. R. 1 Exch. (Eng.) 117, 4 request were made during the agreed Hurlst & C. 149, 35 L. J. Exch. N. S. period for delivery, so that the vendor 81, 12 Jur. N. S. 167, 13 L. T. N. S. would be obliged, if he sued for non- 639, 14 Week. Rep. 397, it was held that acceptance of an offer to deliver after a vendor of goods might maintain an the agreed period, to rely upon the as- action upon a written contract, alsent of the vendee to his request, he thoi there had been an oral agreecould not aver and prove that he was ment extending the time for the perready and willing to deliver accord

formance thereof. It is stated that the ing to the terms of the original con- declaration was framed so as to fit tract. The statement shows that he

either the written agreement or the was not. He would be driven to rely

oral agreement, and that the goods on the assent of the vendee to a substituted time of delivery; that is to

were tendered by the vendor to the say, to an altered contract or a new

purchaser in time for either of those contract. This he cannot do, so as to

contracts. The action was

one for enforce his claim." Accordingly, it

nonacceptance. This was held in Plevins v. Downing (1876) case was affirmed upon appeal (1867) L. R. 1 C. P. (Eng.) 220, 45 L. J. C. P. L. R. 2 Exch. 135, 36 L. J. Exch. N. S. 91, 15 L. T. N. S. 672, 15 Week. Rep. the original agreement. Legal v. Mil520.

damages for

ler (1750) 2 Ves. Sr. 299, 28 Eng. In Vezey v. Rashleigh (1904] 1 Ch. Reprint, 193; Price v. Dyer (1810) 17 (Eng.) 834, 90 L. T. N. S. 663, 73 L. J. Ves. Jr. 363, 34 Eng. Reprint, 137, 11 Ch. N. S. 422, 52 Week. Rep. 442, it is Revised Rep. 102. held that an agreement to execute a The rule that the Statute of Frauds lease cannot be subsequently varied by prevents the oral modification of a parol.

writing has been applied in the case And a subsequent oral agreement of a writing which was insufficient that goods shipped by a certain vessel under the statute. Arky V. F. W. should be received by the purchaser Brockman Commission Co. (1914) 185 from the warehouse, instead of the Mo. App. 241, 170 S. W. 353.' After quay as provided in the written agree- stating that the memorandum was inment, is invalid; consequently, in an sufficient to satisfy the Statute of action by the purchaser against his Frauds, the court continues: "But, as vendor for failure to deliver, the suffi- we have said, plaintiff's case proceeds ciency of the delivery cannot be in upon the theory of a subsequent oral question where the only attempt at agreement modifying the prior one delivery was made from the ware- evidenced by the memorandum.” The house. Moore v. Campbell (1854) 10 court, referring to Rucker v. HarringExch. (Eng.) 323, 2 C. L. R. 1084, 23 ton (1893) 52 Mo. App. 481, states that L, J. Exch. N. S. 310. The court states it is well settled, in this state at least, that if the purchaser had accepted that a contract which the Statute of and received the goods from the ware- Frauds requires to be in writing may house, or even the delivery or transfer not be modified or varied by a subseorder which was offered as a perform- quent oral agreement. It was accordance of the contract on the vendor's ingly held in the case that a memopart, there would have been a good randum for the sale of goods which answer to the action by way of accord was insufficient under the Statute of and satisfaction; but, there being no Frauds could not be modified by a such acceptance, no such question subsequent agreement as to the terms arises in the case. A broker who is of payment. held to have acted solely for the pur- See Bonicamp v. Starbuck (1910) chaser in the transaction requested 25 Okla. 483, L.R.A.1917B, 141, 106 the goods to be warehoused on the Pac. 839. purchaser's account, and the refusal to In Whiteaker v. Vanschoiack (1873) accept the warehouse orders tendered 5 Or. 113, the court refused specific by the vendor was based upon a dis- performance of an agreement for the crepancy in the description therein of exchange of land, where the original the amount of the goods.

written agreement contained an inIn an action for specific perform- sufficient description of land, and the ance, in which the complainant ad subsequent oral agreement introduced mitted the subsequent modifications new terms into the contract and addand asked to have specific performance ed to and perfected the description of the modified agreement if the de- of the land. There were other objecfendant so elected, or, if not, for tions, however, to the specific enforcespecific performance of the original ment of the contract in this case. agreement, the complainant was held The courts have failed to discrimientitled to the relief asked. Robinson nate between two entirely different v. Page (1826) 3 Russ. Ch. 119, 38 things in this connection. It is one Eng. Reprint, 519, 27 Revised Rep. 26. thing to supply an omission from a

But it has been held in England that writing which, because of such omisvariations in a written contract that sion, fails to comply with the requirehave been acted upon, so that the orig- ments of the Statute of Frauds, and inal agreement can no longer be en- another thing to modify a contract forced without injury to one party, bar that has been put in writing so as to an action for specific performance of comply with the statute. This is true although the part sought to be sup- Iron Works v. Caldwell & D. Iron plied to perfect the defective writing Works (1915) 60 Ind. App. 317, 110 N, is that agreed upon subsequently. In E. 714; Walter v. Victor G. Bloede Co. other words, where the parties have (1901) 94 Md. 80, 50 Atl. 433; Abell v. entered into an agreement required by Munson (1869) 18 Mich. 306, 100 Am. the Statute of Frauds to be in writing, Dec. 165; Cook v. Bell (1869) 18 Mich. and have failed to put sufficient of the 387. See Jarman v. Westbrook (1910) agreement in writing to comply with 134 Ga. 19, 67 S. E. 403, infra, II. c; the statute, there is no enforceable Ladd v. King (1849) 1 R. I. 224, 51 contract. Any subsequent oral modi- Am. Dec. 624; but see subd. V., as to fication the parties agree upon is in- the validity of a subsequent agreeeffective, because there is no enforce- ment extending time); an oral modiable contract to be modified. It seems fication of the terms of a written conunnecessary, therefore, to consider tract for the sale of chattels, as to the the subsequent agreement, because, it chattels to be delivered thereunder being admitted that the oral agree- (Willis v. Fields (1908) 132 Ga. 242, ment is merely supplementary, and 63 S. E. 828); an oral modification of there being no enforceable agreement

the specifications of mules which were to be supplemented, the oral agree- the subject of sale (Carpenter v. Galment must necessarily be of no effect. loway (1881) 73 Ind. 418, see infra,

II. c); an oral modification of the b. Application as dependent upon char- specification of straw (a provision in acter of modification.

a contract for the purchase of flax In a large number of cases the char- straw that the straw "be delivered acter of the modification is not con- in a dry condition and free from grass, sidered; the rule is applied without weeds, and all foreign substances, canreference thereto. It has seemed ad- not be modified by parol by waiving visable to show in a general way the the condition or provision that the character of modifications to which straw must be free from weeds, and the rule has been applied. No attempt agreeing to receive the same under has been made, however, to make this the contract notwithstanding its weedy treatment exhaustive of the cases condition. Brown v. Sanborn (1875) which have not made a point of the 21 Minn. 402); an oral agreement that character of the modification. The a lease for saloon purposes should not rule has been applied and held to pre- be enforced if lessee failed to obtain vent: An oral reduction in the rate the necessary license to carry on the of interest on a promissory note, saloon business (Burgett v. Loeb where such a claim must be evidenced (1908) 43 Ind. App. 657, 88 N. E. 346); by writing (Adler v. Friedman (1860) an oral modification of a written lease 16 Cal. 138); an oral modification of by the terms of which the lessee was the provision in an insurance policy as allowed to sell or dispose of any wood to the location of insured goods or timber standing upon any part of (Simonton v. Liverpool, L. & G. Ins. the premises which he put in cultiCo. (1874) 51 Ga. 76); an oral modifi- vation, so that the lessee could sell cation of the time for payment of the wood although he had not complied premiums on a life insurance policy with the terms of the written agree(Mitchell v. Universal L. Ins. Co. ment (Beard v. A. A. Gooch & Son (1875) 54 Ga. 289); an oral modifica- (1910) 62 Tex. Civ. App. 69, 130 S. tion of a logging contract as to the W. 1022); an oral modification of the timber included therein (Grand Forks manner of making payment for goods Lumber Co. v. McClure Logging Co. purchased (Warren v. A. B. Mayer (1908) 103 Minn. 471, 115 N. W. 406); Mfg. Co. (1900) 161 Mo. 112, 61 S. W. an oral extension of the time for the 644);


oral agreement between performance of a written agreement vendor and vendees that payment was (Hawkins v. Studdard (1908) 132 Ga. to be made in land, instead of note 265, 131 Am. St. Rep. 190, 63 S. E. and mortgage as provided in writing 852 (time implied by law); Napier (Malkan v. Hemming (1909) 82 Conn.


293, 73 Atl. 752), or instead of money since, and the vendor paid the balance (Bradley v. Harter (1900) 156 Ind. which fell due the purchaser according 499, 60 N. E. 139); an oral modifica- to the valuation thus made, the objection, upon discovery that vendor could tion of the Statute of Frauds was held not give good title, to deduct a cer- not available to the vendor. Stark v. tain sum from the purchase price and Wilson (1814) 3 Bibb (Ky.) 476. The accept the title it was found court states: “It cannot, however, be (Rucker v. Harrington (1892) 52 Mo. admitted that the agreement comes App. 481).

within the statute. It is in writing An oral agreement that one of two and signed by the parties, and, though purchasers of land shall assume the the parties thereto by subsequent parol liabilities of the contract and be en- agreement substituted other valuers to titled to the benefits cannot be proven ascertain the value of the land, that to justify an action against the pur- arrangement cannot affect the right of chaser so assuming the contract alone, (the purchaser] to a conveyance of the on joint notes executed by himself and land agreed to be conveyed by the the other purchaser. Elrod v. Camp written agreement. The subsequen (1920) 150 Ga. 48, 102 S. E. 357. parol agreement did not alter the

In some jurisdictions the validity of rights of the parties under the written the subsequent oral modification is de- contract, but only related to and pendent upon the character thereof. regulated the manner of ascertaining It has been held that a mere oral the value of the land. We are of extension of time for performance is opinion, therefore, the agreement does valid. See infra, subd. V.

But see

not come within the statute.” Specific Welch v. McIntosh (1913) 89 Kan. 47, performance was accordingly allowed 130 Pac. 641, infra, IV. a, and Autem the vendee to compel the conveyance v. Mayer Coal Co. (1916) 98 Kan. 379, by the vendor according to the agree158 Pac. 13, supra, II. a. But if the ment. subsequent oral agreement involves In other cases in which the oral more than a mere extension of time, it modification is held invalid, it is is not valid. Banister v. Fallis (1911) pointed out that the modification in85 Kan. 320, 116 Pac. 822. It is stated volved was of an essential particular that the agreement produced a new of the contract. Thus, it was held in condition which not only became Heisley v. Swanstrom (1889) 40 Minn. essential to any conveyance at all, but 196, 41 N. W. 1029, that a stipulation which was regarded, and is still re- in a contract for the sale of land that garded by the plaintiff, as indis- if the title of the vendor is not good, pensable to the vesting of the title in and cannot be made good, the agreehim. Under these circumstances the ment shall be void, and the vendor oral agreement constituted a modifica- shall not be liable for any damage tion of a written contract for the sale except to return the cash payment of land, and was itself an agreement made, cannot be orally modified by an for the sale and conveyance of an agreement of the vendor that, if the interest in land, and hence was unen- vendee would wait and not buy other forceable, because not in writing. land, the vendor would deliver the

See Barton v. Gray (1885) 57 Mich. land in question, and, if he failed to 622, 24 N. W. 638; McConathy v. Lan- do so, would pay all damages, so as to ham (1903) 116 Ky. 735, 76 S. W. 535, entitle the vendee to damages. The infra, V.

rights of third parties intervened in Where the vendor's title to part of this case. Apparently the oral agreethe land had failed, and it was agreed ment was made after the time for the that appraisers should value that part, delivery of the deed in the original and the parties orally substituted contract had expired, but no point is other appraisers, who valued the land made of this beyond the mere stateto the mutual satisfaction of both ment of the fact. But see Scheerparties, whereupon the purchaser took schmidt v. Smith (1898) 74 Minn. 224, possession and has held possession 77 N. W. 34, infra. It is stated in the

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