conditions of the agreement within the time prescribed. Emmet v. Dewhurst (Eng.) supra. Any oral agreement extending the time is ineffectual. So a purchaser of a leasehold interest in land may recover an advance payment, where the vendor defaulted in performance on the day stipulated in the writing, notwithstanding an oral agreement to extend time. Evidence of the oral agreement is held inadmissible. Stowell v. Robinson (1837) 3 Bing. N. C. 928, 132 Eng. Reprint, 668. At the day agreed upon neither of the parties was ready to carry the contract into effect, not only on account of objections that were taken to the title, which were then in a course of being removed, but also because the brokers had not completed their valuation at that time. Subsequently to the day agreed upon, both the parties were endeavoring to procure the license from the ground landlord for the assignment of the lease. Some objection being raised on this ground, the purchaser wrote the vendor that he considered the contract at an end, and demanded a return of the deposit. Within a few days after this letter, and within what appears to the court to be a reasonable time for that purpose, the objection would have been met, "so that the question, as was before stated, is this,-Can the day for the completion of the purchase of an interest in land inserted in a written contract be waived by a parol agreement, and another day be substituted in its place, so as to bind the parties?-and we are of opinion that it cannot." The court states that this "is virtually and substantially to allow an action to be brought on an agreement relating to the sale of land partly in writing signed by the parties, and partly not in writing, but by parol only, and amounts to a contravention of the Statute of Frauds." A purchaser of goods who has orally extended the time for the delivery thereof cannot subsequently recover damages for nondelivery, where the oral extension amounts to the substitution of a new contract for the written one, the same in all respects as the written one except as to the de

livery of the goods and payment therefor. 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 Marshall v. Lynn (1840) 6 Mees. & W. 109, 151 Eng. Reprint, 342, 9 L. J. Exch. N. S. 126, where there was what amounted to a substituted contract.

But it has been held in England that an action upon the written agreement for failure to accept goods, by a vendor who, at the request of the purchasers, allowed delivery of the goods sold to stand over, cannot be defeated by showing the oral agreement. Hickman v. Haynes (1875) L. R. 10 C. P. (Eng.) 598. The court, after reviewing the English cases, concludes that "the result of these cases appears to be that neither a plaintiff nor a defendant can, at law, avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing, and required so to be by the Statute of Frauds. But so far as this principle has any application to the present case, it appears to us rather to preclude the defendants from setting up an agreement to enlarge the time for delivery in answer to the plaintiff's demand, than to prevent the plaintiff from suing on the original contract for a breach of it."

The distinction between Stead v. Dawber and Hickman v. Haynes is an elusive one, and rests more in the theory of the respective actions in these cases than in any difference in facts between them. The distinction as expressed by the court in Hickman v. Haynes is perhaps as logical a one as can be made, and is as follows: "In Stead v. Dawber there was a written agreement for the delivery of goods on a particular day and a subsequent verbal agreement for their delivery on a later specified day, and the court came to the conciusion that the parties intended to substitute the later verbal. agreement for the previous written agreement; but in the case now before the court there was no fresh agreement at all for the delivery of the 25 tons, which can be regarded as having been substituted for the original

written contract. There was nothing more than a waiver by the defendants of a delivery by the plaintiff in June of the last 25 tons of iron; and it should seem that in Stead v. Dawber the court would have been in favor of the plaintiff if they had come to the conclusion that there had been no substitution of one agreement for another." In Hickman v. Haynes, the extension of time was granted at the request of the defendant purchaser, and the breach alleged in the action by the vendor was a refusal to accept the goods at the time agreed upon in the written contract. In a subsequent case, the court speaks of such a situation, and states that "where the vendor, being ready to deliver within the agreed time, is shown to have withheld his offer to deliver until after the agreed time, in consequence of a request to him to do so made by the vendee before the expiration of the agreed time, and where, after the expiration of the agreed time and within a reasonable time, the vendor proposes to deliver and the vendee refuses to accept, the vendor can recover damages. He can properly aver and prove that he was ready and willing to deliver according to the terms of the original contract. . . . In such case it is said that the original contract is unaltered, and that the arrangement has reference only to the mode of performing it. But if the alteration of the period of delivery were made at the request of the vendor, though such request were made during the agreed period for delivery, so that the vendor would be obliged, if he sued for nonacceptance of an offer to deliver after the agreed period, to rely upon the assent of the vendee to his request, he could not aver and prove that he was ready and willing to deliver according to the terms of the original contract. The statement shows that he was not. He would be driven to rely on the assent of the vendee to a substituted time of delivery; that is to say, to an altered contract or a new contract. This he cannot do, so as to enforce his claim." Accordingly, it was held in Plevins v. Downing (1876) L. R. 1 C. P. (Eng.) 220, 45 L. J. C. P.

N. S. 695, 35 L. T. N. S. 263, that a vendor who had failed to deliver the goods at the time stipulated in the writing could not recover damages for nonacceptance thereof upon the

strength of a subsequent oral agreement. The court states that, in such a situation, the vendors are logically driven to rely upon the subsequent requests of the purchaser, either as a proposed alteration of a term of the original contract, or as a request upon which to hang a new contract to accept; but, as the request was merely verbal, the undertaking sought to be founded on it cannot be enforced.

But in Marshall v. Lynn (Eng.) supra, a vendor who was seeking to recover in assumpsit for nonacceptance of goods sold alleged that he was ready and willing to deliver upon the time fixed in the writing, and tendered and offered to perform at that time, but, at the request of the purchaser, delayed performance according to an oral agreement. Recovery was denied in this case.

But the English cases have gone farther than to hold merely that no action can be maintained on an agreement resting partly in writing and partly in parol. It has been expressly held that the written agreement is not rescinded by an oral one extending the time for the performance thereof, or modifying it in some other particular; consequently an action may be maintained thereon. In Noble v. Ward (1866) L. R. 1 Exch. (Eng.) 117, 4 Hurlst & C. 149, 35 L. J. Exch. N. S. 81, 12 Jur. N. S. 167, 13 L. T. N. S. 639, 14 Week. Rep. 397, it was held that a vendor of goods might maintain an action upon a written contract, although there had been an oral agreement extending the time for the performance thereof. It is stated that the declaration was framed so as to fit either the written agreement or the oral agreement, and that the goods were tendered by the vendor to the purchaser in time for either of those contracts. The action was one for damages for nonacceptance. This case was affirmed upon appeal (1867) L. R. 2 Exch. 135, 36 L. J. Exch. N. S.

91, 15 L. T. N. S. 672, 15 Week. Rep. 520.

In Vezey v. Rashleigh [1904] 1 Ch. (Eng.) 834, 90 L. T. N. S. 663, 73 L. J. Ch. N. S. 422, 52 Week. Rep. 442, it is held that an agreement to execute a lease cannot be subsequently varied by parol.

And a subsequent oral agreement that goods shipped by a certain vessel should be received by the purchaser from the warehouse, instead of the quay as provided in the written agreement, is invalid; consequently, in an action by the purchaser against his vendor for failure to deliver, the sufficiency of the delivery cannot be in question where the only attempt at delivery was made from the warehouse. Moore v. Campbell (1854) 10 Exch. (Eng.) 323, 2 C. L. R. 1084, 23 L. J. Exch. N. S. 310. The court states that if the purchaser had accepted and received the goods from the warehouse, or even the delivery or transfer order which was offered as a performance of the contract on the vendor's part, there would have been a good answer to the action by way of accord and satisfaction; but, there being no such acceptance, no such question arises in the case. A broker who is held to have acted solely for the purchaser in the transaction requested the goods to be warehoused on the purchaser's account, and the refusal to accept the warehouse orders tendered by the vendor was based upon a discrepancy in the description therein of the amount of the goods.

In an action for specific performance, in which the complainant admitted the subsequent modifications and asked to have specific performance of the modified agreement if the defendant so elected, or, if not, for specific performance of the original agreement, the complainant was held entitled to the relief asked. Robinson v. Page (1826) 3 Russ. Ch. 119, 38 Eng. Reprint, 519, 27 Revised Rep. 26.

But it has been held in England that variations in a written contract that have been acted upon, so that the original agreement can no longer be enforced without injury to one party, bar an action for specific performance of

the original agreement. Legal v. Miller (1750) 2 Ves. Sr. 299, 28 Eng. Reprint, 193; Price v. Dyer (1810) 17 Ves. Jr. 363, 34 Eng. Reprint, 137, 11 Revised Rep. 102.

The rule that the Statute of Frauds prevents the oral modification of a writing has been applied in the case of a writing which was insufficient under the statute. Arky v. F. W. Brockman Commission Co. (1914) 185 Mo. App. 241, 170 S. W. 353. After stating that the memorandum was insufficient to satisfy the Statute of Frauds, the court continues: "But, as we have said, plaintiff's case proceeds upon the theory of a subsequent oral agreement modifying the prior one evidenced by the memorandum." The court, referring to Rucker v. Harrington (1893) 52 Mo. App. 481, states that it is well settled, in this state at least, that a contract which the Statute of Frauds requires to be in writing may not be modified or varied by a subsequent oral agreement. It was accordingly held in the case that a memorandum for the sale of goods which was insufficient under the Statute of Frauds could not be modified by a subsequent agreement as to the terms of payment.

See Bonicamp v. Starbuck (1910) 25 Okla. 483, L.R.A.1917B, 141, 106 Pac. 839.

In Whiteaker v. Vanschoiack (1873) 5 Or. 113, the court refused specific performance of an agreement for the exchange of land, where the original written agreement contained an insufficient description of land, and the subsequent oral agreement introduced new terms into the contract and added to and perfected the description of the land. There were other objections, however, to the specific enforcement of the contract in this case.

The courts have failed to discriminate between two entirely different things in this connection. It is one thing to supply an omission from a writing which, because of such omission, fails to comply with the requirements of the Statute of Frauds, and another thing to modify a contract that has been put in writing so as to comply with the statute. This is true

although the part sought to be supplied to perfect the defective writing is that agreed upon subsequently. In other words, where the parties have entered into an agreement required by the Statute of Frauds to be in writing, and have failed to put sufficient of the agreement in writing to comply with the statute, there is no enforceable contract. Any subsequent oral modification the parties agree upon is ineffective, because there is no enforceable contract to be modified. It seems unnecessary, therefore, to consider the subsequent agreement, because, it being admitted that the oral agreement is merely supplementary, and there being no enforceable agreement to be supplemented, the oral agreement must necessarily be of no effect.

b. Application as dependent upon character of modification.

In a large number of cases the character of the modification is not considered; the rule is applied without reference thereto. It has seemed advisable to show in a general way the character of modifications to which the rule has been applied. No attempt has been made, however, to make this treatment exhaustive of the cases which have not made a point of the character of the modification. The rule has been applied and held to prevent: An oral reduction in the rate of interest on a promissory note, where such a claim must be evidenced by writing (Adler v. Friedman (1860) 16 Cal. 138); an oral modification of the provision in an insurance policy as to the location of insured goods (Simonton v. Liverpool, L. & G. Ins. Co. (1874) 51 Ga. 76); an oral modification of the time for payment of premiums on a life insurance policy (Mitchell v. Universal L. Ins. Co. (1875) 54 Ga. 289); an oral modification of a logging contract as to the timber included therein (Grand Forks Lumber Co. v. McClure Logging Co. (1908) 103 Minn. 471, 115 N. W. 406); an oral extension of the time for the performance of a written agreement (Hawkins v. Studdard (1908) 132 Ga. 265, 131 Am. St. Rep. 190, 63 S. E. 852 (time implied by law); Napier

Iron Works v. Caldwell & D. Iron Works (1915) 60 Ind. App. 317, 110 N. E. 714; Walter v. Victor G. Bloede Co. (1901) 94 Md. 80, 50 Atl. 433; Abell v. Munson (1869) 18 Mich. 306, 100 Am. Dec. 165; Cook v. Bell (1869) 18 Mich. 387. See Jarman v. Westbrook (1910) 134 Ga. 19, 67 S. E. 403, infra, II. c; Ladd v. King (1849) 1 R. I. 224, 51 Am. Dec. 624; but see subd. V., as to the validity of a subsequent agreement extending time); an oral modification of the terms of a written contract for the sale of chattels, as to the chattels to be delivered thereunder (Willis v. Fields (1908) 132 Ga. 242, 63 S. E. 828); an oral modification of the specifications of mules which were the subject of sale (Carpenter v. Galloway (1881) 73 Ind. 418, see infra, II. c); an oral modification of the specification of straw (a provision in a contract for the purchase of flax straw that the straw "be delivered in a dry condition and free from grass, weeds, and all foreign substances, cannot be modified by parol by waiving the condition or provision that the straw must be free from weeds, and agreeing to receive the same under the contract notwithstanding its weedy condition. Brown v. Sanborn (1875) 21 Minn. 402); an oral agreement that a lease for saloon purposes should not be enforced if lessee failed to obtain the necessary license to carry on the saloon business (Burgett v. Loeb (1908) 43 Ind. App. 657, 88 N. E. 346); an oral modification of a written lease by the terms of which the lessee was allowed to sell or dispose of any wood or timber standing upon any part of the premises which he put in cultivation, so that the lessee could sell the wood although he had not complied with the terms of the written agreement (Beard v. A. A. Gooch & Son (1910) 62 Tex. Civ. App. 69, 130 S. W. 1022); an oral modification of the manner of making payment for goods purchased (Warren v. A. B. Mayer Mfg. Co. (1900) 161 Mo. 112, 61 S. W. 644); an oral agreement between vendor and vendees that payment was to be made in land, instead of note and mortgage as provided in writing (Malkan v. Hemming (1909) 82 Conn.

293, 73 Atl. 752), or instead of money (Bradley v. Harter (1900) 156 Ind. 499, 60 N. E. 139); an oral modification, upon discovery that vendor could not give good title, to deduct a certain sum from the purchase price and accept the title as it was found (Rucker v. Harrington (1892) 52 Mo. App. 481).

An oral agreement that one of two purchasers of land shall assume the liabilities of the contract and be entitled to the benefits cannot be proven to justify an action against the purchaser so assuming the contract alone, on joint notes executed by himself and the other purchaser. Elrod v. Camp (1920) 150 Ga. 48, 102 S. E. 357.

In some jurisdictions the validity of the subsequent oral modification is dependent upon the character thereof. It has been held that a mere oral extension of time for performance is valid. See infra, subd. V. But see Welch v. McIntosh (1913) 89 Kan. 47, 130 Pac. 641, infra, IV. a, and Autem v. Mayer Coal Co. (1916) 98 Kan. 379, 158 Pac. 13, supra, II. a. But if the subsequent oral agreement involves more than a mere extension of time, it is not valid. Banister v. Fallis (1911) 85 Kan. 320, 116 Pac. 822. It is stated that the agreement produced a new condition which not only became essential to any conveyance at all, but which was regarded, and is still regarded by the plaintiff, as indispensable to the vesting of the title in him. Under these circumstances the oral agreement constituted a modification of a written contract for the sale of land, and was itself an agreement for the sale and conveyance of an interest in land, and hence was unenforceable, because not in writing.

See Barton v. Gray (1885) 57 Mich. 622, 24 N. W. 638; McConathy v. Lanham (1903) 116 Ky. 735, 76 S. W. 535, infra, V.

Where the vendor's title to part of the land had failed, and it was agreed that appraisers should value that part, and the parties orally substituted other appraisers, who valued the land to the mutual satisfaction of both parties, whereupon the purchaser took possession and has held possession

since, and the vendor paid the balance which fell due the purchaser according to the valuation thus made, the objection of the Statute of Frauds was held not available to the vendor. Stark v. Wilson (1814) 3 Bibb (Ky.) 476. The court states: "It cannot, however, be admitted that the agreement comes within the statute. It is in writing and signed by the parties, and, though the parties thereto by subsequent parol agreement substituted other valuers to ascertain the value of the land, that arrangement cannot affect the right of [the purchaser] to a conveyance of the land agreed to be conveyed by the written agreement. The subsequent parol agreement did not alter the rights of the parties under the written contract, but only related to and regulated the manner of ascertaining the value of the land. We are of opinion, therefore, the agreement does not come within the statute." Specific performance was accordingly allowed the vendee to compel the conveyance by the vendor according to the agreement.

In other cases in which the oral modification is held invalid, it is pointed out that the modification involved was of an essential particular of the contract. Thus, it was held in Heisley v. Swanstrom (1889) 40 Minn. 196, 41 N. W. 1029, that a stipulation in a contract for the sale of land that if the title of the vendor is not good, and cannot be made good, the agreement shall be void, and the vendor shall not be liable for any damage except to return the cash payment made, cannot be orally modified by an agreement of the vendor that, if the vendee would wait and not buy other land, the vendor would deliver the land in question, and, if he failed to do so, would pay all damages, so as to entitle the vendee to damages. The rights of third parties intervened in this case. Apparently the oral agreement was made after the time for the delivery of the deed in the original contract had expired, but no point is made of this beyond the mere statement of the fact. But see Scheerschmidt v. Smith (1898) 74 Minn. 224, 77 N. W. 34, infra. It is stated in the