Heisley Case that it is "undoubtedly competent for the parties to waive a forfeiture or strict performance as to time, and to consent to performance of the contract in a modified form, so that such substituted performance should stand as a fulfilment of the same by virtue of the acts of the parties, . . . but the supplemental contract relied on in this case to establish a valid legal claim for damages subsisting against [the vendor] in favor of [the vendee] was a modifica

tion of the original contract in an essential particular, by substituting a new and independent stipulation therein." It has been expressly held in this jurisdiction that an oral extension of time does not become a part of the contract. See Scheerschmidt v. Smith (Minn.) infra. It is held in Hanson v. Gunderson (1897) 95 Wis. 613, 70 N. W. 827, that a written contract relating to the payment of an employee's wages, which by implication of law was joint in its obligation, and not several, could not be modified by a subsequent oral agreement to the effect that each of the partners should pay one half the wages. The court states: "This change would affect the contract in an essential particular, in which, by its terms, it was not to be performed within a year. An oral agreement covering that particular is void by the express terms of the statute."

Apart from the effect of acting upon the modified agreement, an oral modification of a real-estate broker's contract as to his compensation, a matter required by the statute to be in writing, is is ineffective. HECHT V. MARSH (reported herewith) ante, 1.

In the recent English case of 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, the principle is laid down that, if the oral contract modifying the one in writing is one which is itself required to be in writing, then it must be wholly disregarded, and the parties are relegated to their rights under the original contract; but if, on the other hand, there is nothing in the terms of the new contract which neces

sitates a written contract, then, al. though the original contract was one which was bound to be in writing, the new parol contract may be enforced, because, although it is not in writing, it is nevertheless an effective contract, and in this case a verbal agreement modifying an employment contract relating to the salary to be paid, the contract having less than a year to run, was held valid. This decision is criticized in Morris v. Baron & Co. [1918] A. C. (Eng.) 1, 9 B. R. C. 399, 87 L. J. K. B. N. S. 145, 118 L. T. N. S. 34, Ann. Cas. 1918C, 1197.

It has been held that a lease that has no more than a year to run may be modified by an oral agreement. Sherman, C. & Co. v. Buffum & Pendleton (1919) 91 Or. 352, 179 Pac. 241. That this is true is suggested in Doherty v. Doe (1893) 18 Colo. 456, 33 Pac. 165, but the decision in that case is based upon another ground.

Compare with cases discussed in subd. I., which are held not to fall within the Statute of Frauds.

Where oral modification was as to a matter not required by the statute to be in writing, it has been held good. Thus, it was held in Murray v. Boyd (1915) 165 Ky. 625, 177 S. W. 468, that the provision in a written agreement for the sale of timber that it shall be branded within a certain time may be waived by parol.

In Rank v. Garvey (1902) 66 Neb. 767, 92 N. W. 1025, 99 N. W. 666, it was held that the written authority required by a statute to authorize a real-estate broker to sell land might be modified by parol as to the price of the land, since the price at which the agent is authorized to sell is not required to be contained in the writing. This case is approved in Furse v. Lambert (1910) 85 Neb. 739, 124 N. W. 146, a case involving the modification of the price in a written authorization for the sale of real estate. The rule of these cases was extended in Hetzel v. Lyon (1910) 87 Neb. 261, 126 N. W. 997, to authorize a parol extension of the time for the performance of a real-estate broker's contract, which contained a limitation of the time of its continuance, the court stating that

the statute does not require that the time for the existence of the agent's authority to sell be stated in the written contract, and therefore that is one of the provisions that may be modified by parol. That the commission of the broker cannot be changed by parol, see Lincoln Realty Co. v. Garden City Land & Immigration Co. (1913) 94 Neb. 346, 143 N. W. 230, Ann. Cas. 1914D, 392, infra, II. c. In Sizemore v. Bowling (1909) — Ky. —, 115 S. W. 737, a vendor and purchaser, upon discovery of the purchaser that he was unable to take and pay for all the land covered by the purchase, agreed orally that he should take a part of the land and pay for the same a sum then agreed upon. He had gone into possession under the written agreement, and, after the new agreement, remained in possession of the part of the land retained under and by virtue of his entry under the written contract. In an action by the vendor to recover a balance due on the purchase price and have it adjudged a lien on the land, the purchaser pleaded the Statute of Frauds, on the theory, however, that the written contract had been canceled, and that a new contract had been entered into for the purchase of a part of the land. The court denied this contention, holding that it was a modification, and, having so held, sustained the action for the purchase price without much discussion of the effect of the Statute of Frauds upon the right thus to modify the contract. It is stated, however: "The contract under which Sizemore [the purchaser] holds the land is the written contract as modified by the verbal agreement. This being so, the contract of 1884 [the verbal one] was not within the Statute of Frauds." A parol agreement between the parties to an oil lease, reducing the amount of the royalty to the lessor upon discovery that the land did not produce oil sufficient to pay for operating the same at the royalty prescribed in the lease, in pursuance of which verbal agreement the lessee drilled, equipped, and put in operation additional wells at a considerable expense, and tendered the landowner the royalty agreed

upon in the oral agreement, was sustained in Nonamaker v. Amos (1905) 73 Ohio St. 163, 4 L.R.A. (N.S.) 980, 112 Am. St. Rep. 708, 76 N. E. 949, 4 Ann. Cas. 170. The court concludes that when the parties entered into the parol contract they were not contracting for an interest in or concerning real estate, but for a division of personal property in proportions different from those named in the written lease. The apparent theory of the court is that the parol contract was not within the Statute of Frauds, as it is held it did not relate to an interest in or concerning land, nor was it within the Statute of Frauds on the theory that it was not to be performed within a year, since on its face it was susceptible of being performed within the year. The court also rests the decision, in part, upon the fact that the lessee had fully performed his part of the contract; and it is stated that the lessor cannot repudiate the contract as invalid and defeat the rights of the lessee. The action was one by the lessor to enforce specific performance of the original written lease; and the court states that courts of equity do not always grant specific performance of contracts, and they will not do so where it would work manifest injustice to adverse parties. In one case it is stated that, if an agreement required to be in writing under the Statute of Frauds is modified by a subsequent oral agreement which does not in itself constitute a contract within the Statute of Frauds, the modification is valid and binding upon the parties. Stamey v. Hemple (1910) 97 C. C. A. 379, 173 Fed. 61. In accord with this general statement it was held in this case that an oral agreement extending the time for the performance of an option is valid.

A definite time for the performance of a written contract for the sale of a business, including the assignment of a lease, not being a feature essential to the validity of the contract, the time stated may be extended by parol. Lewis Bros. v. Pendleton (1921) Tex. Civ. App. —, 227 S. W. 502.

The court in Murray v. Boyd (Ky.) supra, a case involving a sale of

timber, reasons thus: "While the sale of timber was necessarily reduced to writing, and the parties incorporated into the writing other subsidiary or incidental agreements, yet the force of the contract of sale was not affected by the other conditions, and a subsequent parol agreement with reference to them cannot properly be said to be within the Statute of Frauds. To illustrate: if one by written contract sells a certain boundary of land, and the contract provides for a subsequent survey to ascertain the boundary before payment is required, a subsequent parol agreement for the sale of more land would be within the Statute of Frauds, and therefore not enforceable. But if the subsequent agreement merely postponed the time of payment, or waived or rescinded the agreement for survey, there is no reason why that character of agreement would not be binding, since the Statute of Frauds does not require agreements in relation to such subjects to be in writing. If the parol modification would otherwise be enforceable, its validity is not affected although it is incident to a written contract which concerns a subject that the law requires shall be in writing."

On the contrary the law has been declared "to be well settled that an oral variation of the written contract within the Statute of Frauds, though made in respect of a particular which might, if standing alone, be good by parol, cannot be available as a part of the contract, so long as the whole contract, embracing that which is required to be in writing as well as that which is not, remains executory." Scheerschmidt v. Smith (1898) 74 Minn. 224, 77 N. W. 34. It was held that the lessee had a right to take the lessor at his word, and consider his contract at an end after it had been declared forfeited by the lessor although without right. Accordingly, he could maintain an action in damages for breach of the agreement.

In Ladd v. King (1849) 1 R. I. 224, 51 Am. Dec. 624, an action upon an agreement for the sale of a house and lot in which the vendor agreed to complete the house upon the lot by a 17 A.L.R.-3.

certain time, it was urged that the agreement was divisible into two parts, namely, the sale of the land and the finishing of the house; the first was in the Statute of Frauds, and the second not. The court, however, denied this contention, stating that the purchase was of the entire estate, house and lot, and was to be protected at the same time. It is further stated that the true interpretation of the contract is that the sale was to be completed by the stated time; in other words, that the vendor agreed to convey to the purchaser the house and lot complete on or before that date. It was held in Scheerschmidt v. Smith (Minn.) supra, that an oral extension of the time of payment of rent under a lease became no part of the contract so as to bind the party, but that the lessor could not declare the contract forfeited for nonpayment, as he had a right to do under the terms of the writing, until the lessee had a reasonable time thereafter in which to make payment, because the failure to pay on due day was caused by the defendant's own conduct. The English cases proceed on the theory that when the terms of the agreement have been reduced to writing, it cannot be modified by parol, even in respect to a matter which was not required to be in writing. But see Williams v. Moss's Empires (Eng.) supra.

In one case, the court concludes that all of the terms of the agreement (except possibly the consideration) are required to be in writing; consequently there can be no modification by subsequent oral agreement on the theory that since, in the first instance, it was not necessary that all the agreement should have been in writing, a modification of such parts as were not so required to be in writing might be had without violating the statute. Rucker v. Harrington (1892) 52 Mo. App. 481.

It is the theory of some cases that a substitution of other subject-matter creates a new contract, and is not a modification of the old one. In one case, involving a sale of iron rails to be shipped "from the other side" at a certain time, a parol modification

dispensing with the tender of the contract rails and permitting the carrying and offer of any rails shipped from the other side, irrespective of the date of shipment, is held to substitute for the sale of the contract iron a new sale of different iron which never before had been the subject of a contract; such new contract being by parol, it is void under the Statute of Frauds. Clark v. Fey (1890) 121 N. Y. 470, 24 N. E. 703. It is the theory of the New York cases that a sale of goods to be shipped at a stated time makes the date of the shipment terial element in the identification of the property. It is stated that the contract is not for the sale of the goods generally, but for the sale of goods that are to be shipped during the stated period, and, unless such are tendered, the contract is not performed. See Marshall v. Lynn (1840) 6 Mees. & W. 109, 151 Eng. Reprint, 342, 9 L. J. Exch. N. S. 126, supra, II. a.

c. Action taken on oral agreement.

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It appears in many of the cases discussed in the preceding subdivision that at least one of the parties had acted upon the oral agreement. In Carpenter v. Galloway (1881) 73 Ind. 418, a vendor of mules having certain specifications, which claimed were modified by parol, tendered mules conforming to the modified specifications to the vendee. The vendee in Jarman v. Westbrook (1909) 134 Ga. 19, 67 S. E. 403, had made several trips in his attempt to close up the deal involved in that case, and, in his action for damages, asked for $250 for traveling expenses incurred. In Bradley v. Harter (1900) 156 Ind. 499, 60 N. E. 139, a case involving a scheme for the sale of lots, in which the vendees were to sell the lots and the vendor to convey to the purchasers thus obtained, an oral agreement was claimed to the effect that the vendor would accept payment in other land, instead of money. The vendees claimed to have obtained a number of purchasers who were willing to pay for the lots in land. It was held in Christian v. Highlands (1903) 32 Ind. App. 104, 69 N. E. 266, that the rela

tion of trust, under which one who held the title for the purpose of paying the debts of the grantor, could not be changed into a mortgage to secure or indemnify the holder of the legal title upon his contract of suretyship for the owner, to be entered into in the future, although it appears that the holder of the legal title assumed the obligations of suretyship upon the strength of the oral agreement. In Ladd v. King (1849) 1 R. I. 224, 51 Am. Dec. 624, parol evidence showing a subsequent agreement to extend the time of performance in favor of a vendor who had agreed to finish a cottage on the land sold by a stated time was held inadmissible, although the vendor alleged that, relying on the agreement, he proceeded to finish the cottage, and did finish it by the time agreed upon by parol, and then and there tendered a conveyance of the lot with proper deed to the purchaser. In Hanson V. Gunderson (1897) 95 Wis. 613, 70 N. W. 827, a subsequent oral modification of a written agreement by which copartners assumed a joint liability that each should be liable severally for one half the amount of the obligation, notwithstanding one of the partners paid the amount thus due from him according to the oral agreement, was held invalid. In one case a lessee was to pay the lessor for certain straw on the premises, to be valued by a named person. The lessee subsequently proposed another person as valuer, and this was agreed to by lessor, and the valuation made by the person thus proposed. But it was held that the lessor could not recover this valuation. Harvey v. Grabham (1836) 5 Ad. & El. 61, 111 Eng. Reprint, 1089, 2 H. & W. 146, 6 Nev. & M. 154, 5 L. J. K. B. N. S. 235, supra, II. b. An oral agreement that one of two purchasers of land should assume the liabilities of the contract and acquire the benefits was held invalid, although, after the agreement, the party thus yielding his right moved off the land and turned over all his interests to his copurchaser, who after that time had been in exclusive possession and control of the tract of land, and had

exercised sole ownership of the same. Elrod v. Camp (1920) 150 Ga. 48, 102 S. E. 357. See Espy v. Anderson (1850) 14 Pa. 308, supra, II. a, where the vendee had taken possession of the land under an oral agreement; Hicks v. Aylsworth (1881) 13 R. I. 562, infra, V. See Boyd v. Big Three Ranch Co. (1913) 22 Cal. App. 108, 133 Pac. 623, supra, II. a. Special attention is called to Moore v. Campbell (1854) 10 Exch. (Eng.) 326, 23 L. J. Exch. N. S. 310, supra, II. a.

No point is made of the fact that action had been taken, however, in these cases, the general rule being applied without reference thereto. This rule has been applied in cases involving an extension of time, where the party against whom the statute is invoked performed within the time of the oral extension, but not within the time fixed in the writing. Hawkins v. Studdard (1908) 132 Ga. 265, 131 Am. St. Rep. 190, 63 S. E. 852; Cook v. Bell (1869) 18 Mich. 387.

In Napier Iron Works v. Caldwell & D. Iron Works (1915) 60 Ind. App. 317, 110 N. E. 714, the vendor, who claimed the oral modification, had delivered part of the iron after the time specified in the written agreement.

In Abell v. Munson (1869) 18 Mich. 306, 100 Am. Dec. 165, a vendor who was sued for failure to convey property sought to show that there had been no default, or none which had not been waived by subsequent oral agreement; but this was denied on the theory that the time for the performance could not be extended.

Some cases consider the fact that the oral agreement has been acted upon. It has been stated in an action on a contract with the United States government to deliver Army cloth, in which, after obtaining an extension of time, the vendor purchased a large part of the cloth necessary to fulfil the contract and tendered it to the government, that, so long as the parol agreement extending the time was executory, it imposed no binding obligation upon the government; that, when the extension was made, the contractor should have had the arrangement reduced to writing as required

by the statute, or should have stood upon the contract and assumed the liabilities which had been imposed; attempting to perform amid the circumstances then existing involved new risks, and those new risks would rest upon him until, in a legal manner, they were assumed by the government; that assumption of the risk would have happened if the government had accepted the goods, or if it had entered into a new contract in a manner prescribed by the statute; neither of these events happening, the risk remained with the contractor. Knott, J., in Jones v. United States (1875) 11 Ct. Cl. (Fed.) 733. That acceptance would have imposed an obligation on the government, see Salomon v. United States (1873) 19 Wall. (U. S.) 17, 22 L. ed. 46.

Other cases limit the doctrine to executory modifications. Lincoln Realty Co. v. Garden City Land & Immigration Co. (1913) 94 Neb. 346, 143 N. W. 230, Ann. Cas. 1914D, 392; Kingsley v. Kressly (1911) 60 Or. 167, 111 Pac. 385, 118 Pac. 678, Ann. Cas. 1913E, 746; Swain v. Seamens (1869) 9 Wall. (U. S.) 254, 19 L. ed. 554. In Banister v. Fallis (1911) 85 Kan. 320, 116 Pac. 822, an oral modification of an agreement for the sale of real estate, upon discovery of a supposed defect in title, that the deeds should not be delivered until the defect was cured, was held unenforceable. In Seymour v. Hughes (1907) 55 Misc. 248, 105 N. Y. Supp. 249, an oral agreement between landlord and tenant, under a lease giving the landlord the option to terminate the tenancy at any time by a certain notice, modifying this lease so as to entitle the tenants to remain in possession of the premises until the expiration thereof, at a different rent, which was paid by the tenant for several months following the agreement, was held invalid where the unexpired term of the original lease at the time of the agreement was more than a year. The landlord was accordingly held entitled to terminate the tenancy according to the writing. The Georgia cases limit the rule to situations in which its enforcement would not work a fraud, or in which