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Heisley Case that it is "undoubtedly sitates a written contract, then, al. competent for the parties to waive a though the original contract was one forfeiture or strict performance as to which was bound to be in writing, the time, and to consent to performance new parol contract may be enforced, of the contract in a modified form, so because, although it is not in writing, that such substituted performance it is nevertheless an effective contract, should stand as a fulfilment of the and in this case a verbal agreement same by virtue of the acts of the par- modifying an employment contract ties, ... but the supplemental con relating to the salary to be paid, the tract relied on in this case to establish contract having less than a year to a valid legal claim for damages subsist run, was held valid. This decision is ing against the vendor] in favor of criticized in Morris v. Baron & Co. (the vendeel

was a modifica [1918] A. C. (Eng.) 1, 9 B. R. C. 399, tion of the original contract in an es 87 L. J. K. B. N. S. 145, 118 L. T. N. S. sential particular, by substituting a 34, Ann. Cas. 1918C, 1197. new and independent stipulation there It has been held that a lease that in.” It has been expressly held in this has no more than a year to run may be jurisdiction that an oral extension of modified by an oral agreement. Shertime does not become a part of the con man, C. & Co. v. Buffum & Pendleton tract. See Scheerschmidt v. Smith (1919) 91 Or. 352, 179 Pac. 241. That (Minn.) infra. It is held in Hanson v. this is true is suggested in Doherty Gunderson (1897) 95 Wis. 613, 70 v. Doe (1893) 18 Colo. 456, 33 Pac. N. W. 827, that a written contract 165, but the decision in that case is relating to the payment of an em based upon another ground. ployee's wages, which by implication Compare with cases discussed in of law was joint in its obligation, and subd. I., which are held not to fall not several, could not be modified by a within the Statute of Frauds. subsequent oral agreement to the Where oral modification was as to a effect that each of the partners should matter not required by the statute to pay one half the wages. The court be in writing, it has been held good. states: "This change would affect the Thus, it was held in Murray v. Boyd contract in an essential particular, in (1915) 165 Ky. 625, 177 S. W. 468, which, by its terms, it was not to be that the provision in a written agreeperformed within a year. An oral ment for the sale of timber that it agreement covering that particular is shall be branded within a certain void by the express terms of the stat time may be waived by parol. ute.”

In Rank v. Garvey (1902) 66 Neb. Apart from the effect of acting upon 767, 92 N. W. 1025, 99 N. W. 666, it the modified agreement, an oral modi was held that the written authority fication of a real-estate broker's con required by a statute to authorize a tract as to his compensation, a matter real-estate broker to sell land might required by the statute to be in be modified by parol as to the price of writing, is ineffective. HECHT v. the land, since the price at which the MARSH (reported herewith) ante, 1. agent is authorized to sell is not re

In the recent English case of Wil quired to be contained in the writing. liams v. Moss's Empires (1915] 3 K. B. This case is approved in Furse v. Lam(Eng.) 242, 8 B. R. C. 636, 84 L. J. K. B. bert (1910) 85 Neb. 739, 124 N. W. 146, N. S. 1767, 113 L. T. N. S. 560, 31 a case involving the modification of Times L. R. 463, the principle is laid the price in a written authorization down that, if the oral contract modify for the sale of real estate. The rule ing the one in writing is one which is of these cases was extended in Hetzel itself required to be in writing, then it v. Lyon (1910) 87 Neb. 261, 126 N. W. must be wholly disregarded, and the 997, to authorize a parol extension parties are relegated to their rights of the time for the performance of a under the original contract; but if, on real-estate broker's contract, which the other hand, there is nothing in the contained a limitation of the time of terms of the new contract which neces its continuance, the court stating that

the statute does not require that the upon in the oral agreement, was sustime for the existence of the agent's tained in Nonamaker v. Amos (1905) authority to sell be stated in the 73 Ohio St. 163, 4 L.R.A.(N.S.) 980, written contract, and therefore that is 112 Am. St. Rep. 708, 76 N. E. 949, one of the provisions that may be modi 4 Ann. Cas. 170. The court concludes fied by parol. That the commission of that when the parties entered into the the broker cannot be changed by parol, parol contract they were not contractsee Lincoln Realty Co. v. Garden City ing for an interest in or concerning Land & Immigration Co. (1913) 94 real estate, but for a division of perNeb. 346, 143 N. W. 230, Ann. Cas. sonal property in proportions different 1914D, 392, infra, II. c. In Sizemore from those named in the written lease, v. Bowling (1909) - Ky. -115 S. W. The apparent theory of the court is 737, a vendor and purchaser, upon that the parol contract was not within discovery of the purchaser that he was the Statute of Frauds, as it is held unable to take and pay for all the land it did not relate to an interest in or covered by the purchase, agreed orally concerning land, nor was it within the that he should take a part of the land Statute of Frauds on the theory that and pay for the same a sum then it was not to be performed within a agreed upon. He had

gone into

year, since on its face it was susceppossession under the written agree. tible of being performed within the ment, and, after the new agreement, year. The court also rests the deremained in possession of the part of cision, in part, upon the fact that the the land retained under and by virtue lessee had fully performed his part of of his entry under the written contract. the contract; and it is stated that the In an action by the vendor to recover lessor cannot repudiate the contract as a balance due on the purchase price invalid and defeat the rights of the and have it adjudged a lien on the lessee. The action was

one by the land, the purchaser pleaded the Stat lessor to enforce specific performance ute of Frauds, on the theory, however, of the original written lease; and the that the written contract had been court states that courts of equity do canceled, and that a new contract had not always grant specific performance been entered into for the purchase of of contracts, and they will not do so a part of the land. The court denied where it would work manifest injustice this contention, holding that it was a to adverse parties. In one case it is modification, and, having so held, stated that, if an agreement required sustained the action for the purchase to be in writing under the Statute of price without much discussion of the Frauds is modified by a subsequent effect of the Statute of Frauds upon oral agreement which does not in itself the right thus to modify the contract. constitute a contract within the StatIt is stated, however: "The contract ute of Frauds, the modification is valid under which Sizemore (the purchaser] and binding upon the parties. Stamey holds the land is the written contract v. Hemple (1910) 97 C. C. A. 379, 173

as modified by the verbal agree Fed. 61. In accord with this general ment.

This being so, the con statement it was held in this case that tract of 1884 (the verbal one] was not an oral agreement extending the time within the Statute of Frauds." A for the performance of an option is parol agreement between the parties valid. to an oil lease, reducing the amount A definite time for the performance of the royalty to the lessor upon dis of a written contract for the sale of a covery that the land did not produce business, including the assignment of oil sufficient to pay for operating the a lease, not being a feature essential same at the royalty prescribed in the to the validity of the contract, the lease, in pursuance of which verbal time stated may be extended by parol. agreement the lessee drilled, equipped, Lewis Bros. V. Pendleton (1921) and put in operation additional wells Tex. Civ. App. —, 227 S. W. 502. at a considerable expense, and ten The court in Murray v. Boyd (Ky.) dered the landowner the royalty agreed supra, case involving a sale of


timber, reasons thus: “While the sale certain time, it was urged that the of timber was necessarily reduced to agreement was divisible into two parts, writing, and the parties incorporated namely, the sale of the land and the into the writing other subsidiary or finishing of the house; the first was in incidental agreements, yet the force the Statute of Frauds, and the second of the contract of sale was not af not. The court, however, denied this fected by the other conditions, and a contention, stating that the purchase subsequent parol agreement with was of the entire estate, house and lot, reference to them cannot properly be and was to be protected at the same said to be within the Statute of Frauds. time. It is further stated that the true To illustrate: if one by written con interpretation of the contract is that tract sells a certain boundary of land, the sale was to be completed by the and the contract provides for a subse stated time; in other words, that the quent survey to ascertain the bound vendor agreed to convey to the purary before payment is required, a chaser the house and lot complete on subsequent parol agreement for the or before that date. It was held in sale of more land would be within the Scheerschmidt v. Smith (Minn.) supra, Statute of Frauds, and therefore not that an oral extension of the time of enforceable. But if the subsequent payment of rent under a lease became agreement merely postponed the time no part of the contract so as to bind of payment, or waived or rescinded the party, but that the lessor could the agreement for survey, there is no not declare the contract forfeited for reason why that character of agree nonpayment, as he had a right to do ment would not be binding, since the under the terms of the writing, until Statute of Frauds does not require the lessee had a reasonable time thereagreements in relation to such sub after in which to make payment, bejects to be in writing. If the parol cause the failure to pay on due day modification would otherwise be en was caused by the defendant's own forceable, its validity is not affected conduct. The English cases proceed although it is incident to a written on the theory that when the terms contract which concerns a subject that of the agreement have been reduced the law requires shall be in writing." to writing, it cannot be modified by

On the contrary the law has been parol, even in respect to a matter declared "to be well settled that an which was not required to be in oral variation of the written contract writing. But see Williams v. Moss's within the Statute of Frauds, though Empires (Eng.) supra. made in respect of a particular which In one case, the court concludes that might, if standing alone, be good by all of the terms of the agreement (exparol, cannot be available as a part of cept possibly the consideration) are the contract, so long as the whole required to be in writing; consecontract, embracing that which is quently there can be no modification required to be in writing as well as by subsequent oral agreement on the that which is not, remains executory.” theory that since, in the first instance, Scheerschmidt v. Smith (1898) 74 it was not necessary that all the agreeMinn. 224, 77 N. W. 34. It was held ment should have been in writing, a that the lessee had a right to take the modification of such parts as were not lessor at his word, and consider his so required to be in writing might be contract at an end after it had been had without violating the statute. declared forfeited by the lessor al Rucker v. Harrington (1892) 52 Mo. though without right. Accordingly, he App. 481. could maintain an action in damages It is the theory of some cases that for breach of the agreement.

a substitution of other subject-matter In Ladd v. King (1849) 1 R. I. 224,

creates a new contract, and is not a 51 Am. Dec. 624, an action upon an modification of the old one.

In one agreement for the sale of a house and case, involving a sale of iron rails to lot in which the vendor agreed to be shipped "from the other side" at complete the house upon the lot by a a certain 'time, a parol modification

17 A.L.R.-3.


dispensing with the tender of the con tion of trust, under which one who tract rails and permitting the carrying held the title for the purpose of paying and offer of any rails shipped from the debts of the grantor, could not be the other side, irrespective of the date changed into a mortgage to secure or of shipment, is held to substitute for indemnify the holder of the legal title the sale of the contract iron a new upon his contract of suretyship for sale of different iron which never be the owner, to be entered into in the fore had been the subject of a con future, although it appears that the tract; such new contract being by holder of the legal title assumed parol, it is void under the Statute of the obligations of suretyship upon the Frauds. Clark v. Fey (1890) 121 N. strength of the oral agreement. In Y. 470, 24 N. E. 703. It is the theory Ladd v. King (1849) 1 R. I. 224, 51 Am. of the New York cases that a sale of Dec. 624, parol evidence showing a goods to be shipped at a stated time subsequent agreement to extend the makes the date of the shipment a ma time of performance in favor of a terial element in the identification of vendor who had agreed to finish a the property. It is stated that the cottage on the land sold by a stated contract is not for the sale of the time was held inadmissible, although goods generally, but for the sale of the vendor alleged that, relying on goods that are to be shipped during the agreement, he proceeded to finish the stated period, and, unless such the cottage, and did finish it by the are tendered, the contract is not per time agreed upon by parol, and then formed. See Marshall v. Lynn (1840) and there tendered a conveyance of 6 Mees. & W. 109, 151 Eng. Reprint, the lot with proper deed to the pur342, 9 L. J. Exch. N. S. 126, supra, II. a. chaser. In Hanson Gunderson

(1897) 95 Wis. 613, 70 N. W. 827, a c. Action taken on oral agreement.

subsequent oral modification of a writIt appears in many of the cases dis ten agreement by which copartners cussed in the preceding subdivision assumed a joint liability that each that at least one of the parties had should be liable severally for one half acted upon the oral agreement. In the amount of the obligation, notwithCarpenter v. Galloway (1881) 73 Ind. standing one of the partners paid the 418, a vendor of mules having cer amount thus due from him according tain specifications, which it to the oral agreement, was held inclaimed were modified by parol, ten

valid. In one case a lessee was to pay dered mules conforming to the modi the lessor for certain straw on the fied specifications to the vendee. The premises, to be valued by a named vendee in Jarman v. Westbrook (1909) person. The lessee subsequently pro134 Ga. 19, 67 S. E. 403, had made posed another person as valuer, and several trips in his attempt to close this was agreed to by lessor, and the up the deal involved in that case, and, valuation made by the person thus in his action for damages, asked for proposed. But it was held that the $250 for traveling expenses incurred. lessor could not recover this valuaIn Bradley v. Harter (1900) 156 Ind. tion. Harvey V. Grabham (1836) 5 499, 60 N. E. 139, a case involving a Ad. & El. 61, 111 Eng. Reprint, 1089, scheme for the sale of lots, in which 2 H. & W. 146, 6 Nev. & M. 154, 5 L. the vendees were to sell the lots and J. K. B. N. S. 235, supra, II. b. An the vendor to convey to the purchas oral agreement that one of two purers thus obtained, an oral agreement

chasers of land should assume the was claimed to the effect that the liabilities of the contract and acquire vendor would accept payment in other the benefits was held invalid, although, land, instead of money. The vendees after the agreement, the party thus claimed to have obtained a number of yielding his right moved off the land purchasers who were willing to pay and turned over all his interests to for the lots in land. It was held in his copurchaser, who after that time Christian v. Highlands (1903) 32 Ind. had been in exclusive possession and App. 104, 69 N. E. 266, that the rela control of the tract of land, and had



exercised sole ownership of the same. by the statute, or should have stood Elrod v. Camp (1920) 150 Ga. 48, 102 upon the contract and assumed the S. E. 357. See Espy V. Anderson liabilities which had been imposed; (1850) 14 Pa. 308, supra, II. a, where attempting to perform amid the cirthe vendee had taken possession of the cumstances then existing involved new land under an oral agreement; Hicks risks, and those new risks would rest V. Aylsworth (1881) 13 R. I. 562, infra, upon him until, in a legal manner, V. See Boyd v. Big Three Ranch Co. they were assumed by the government; (1913) 22 Cal. App. 108, 133 Pac. 623, that assumption of the risk would supra, II.

Special attention is have happened if the government had called to Moore v. Campbell (1854) accepted the goods, or if it had en10 Exch. (Eng.) 326, 23 L. J. Exch. N. tered into a new contract in a manner S. 310, supra, II. a.

prescribed by the statute; neither of No point is made of the fact that these events happening, the risk reaction had been taken, however, in mained with the contractor. Knott, these cases, the general rule being ap J., in Jones v. United States (1875) 11 plied without reference thereto. This Ct. Cl. (Fed.) 733. That acceptance rule has been applied in cases involv would have imposed an obligation on ing an extension of time, where the the government, see Salomon v. United party against whom the statute is in States (1873) 19 Wall. (U. S.) 17, 22 voked performed within the time of L. ed. 46. the oral extension, but not within the Other cases limit the doctrine to time fixed in the writing. Hawkins v. executory modifications. Lincoln RealStuddard (1908) 132 Ga, 265, 131 Am. ty Co. v. Garden City Land & ImmiSt. Rep. 190, 63 S. E. 852; Cook v. gration Co. (1913) 94 Neb. 346, 143 Bell (1869) 18 Mich. 387.

N. W. 230, Ann. Cas. 19140, 392; In Napier Iron Works v. Caldwell & Kingsley v. Kressly (1911) 60 Or. 167, D. Iron Works (1915) 60 Ind. App. 111 Pac. 385, 118 Pac. 678, Ann. Cas. 317, 110 N. E. 714, the vendor, who 1913E, 746; Swain v. Seamens (1869) claimed the oral modification, had de 9 Wall. (U. S.) 254, 19 L. ed. 554. In livered part of the iron after the time Banister v. Fallis (1911) 85 Kan. 320, specified in the written agreement. 116 Pac. 822, an oral modification of

In Abell v. Munson (1869) 18 Mich, an agreement for the sale of real es306, 100 Am. Dec. 165, a vendor who tate, upon discovery of a supposed was sued for failure to convey prop defect in title, that the deeds 'should erty sought to show that there had not be delivered until the defect was been no default, or none which had cured, was held unenforceable. In not been waived by subsequent oral Seymour v. Hughes (1907) 55 Misc. agreement, but this was denied on 248, 105 N. Y. Supp. 249, an oral agreethe theory that the time for the per ment between landlord and tenant, formance could not be extended. under a lease giving the landlord the

Some cases consider the fact that option to terminate the tenancy at any the oral agreement has been acted up time by a certain notice, modifying on. It has been stated in an action on this lease so as to entitle the tenants a contract with the United States gov to remain in possession of the premernment to deliver Army cloth, in ises until the expiration thereof, at a which, after obtaining an extension of different rent, which was paid by the time, the vendor purchased a large tenant for several months following part of the cloth necessary to fulfil the agreement, was held invalid where the contract and tendered it to the the unexpired term of the original government, that, so long as the parol lease at the time of the agreement was agreement extending the time was more than a year. The landlord was executory, it imposed no binding ob accordingly held entitled to terminate ligation upon the government; that, the tenancy according to the writing. when the extension was made, the con The Georgia cases limit the rule to tractor should have had the arrange situations in which its enforcement ment reduced to writing as required would not work a fraud, or in which

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