there is no part performance. See Georgia cases cited in II. a, supra, and discussion in IV. a, infra.

See Scheerschmidt v. Smith (1898) 74 Minn. 224, 77 N. W. 34, supra, II. b. Even in cases that so limit the rule, it is not every action that will render the oral modification good. This question receives further consideration in subd. IV. infra.

III. Rule that oral modification of a matter relating to the performance is valid.

It has been held in some jurisdictions that modification of certain terms of the contract relating to the performance thereof may be made by parol. The manner of making payment may be modified by parol. Low v. Treadwell (1835) 12 Me. 441, holding that an agreement for the sale of land payable in brick might be modified so as to make delivery of the brick to a creditor of the vendor a payment. The bricks in this case had been delivered to the creditor of the vendor, and the purchaser was seeking specific performance of the contract to convey as provided in the writing. The provision in a written contract for the sale of goods that the sale is made on credit may be modified by a subsequent oral agreement requiring the purchaser to give a promissory note in payment, or to make payment in cash at a discount. Cummings v. Arnold (1842) 3 Met. (Mass.) 486, 37 Am. Dec. 155. It is stated obiter in Lerned V. Wannemacher (1864) 9 Allen (Mass.) 412, an action upon a contract for the sale of coal in which the purchasers agreed to send vessels for the same, that an agreement that, if the vessels were not sent, the coal should be shipped immediately, would be good, even if made only by parol. See Welch v. McIntosh (1913) 89 Kan. 47, 130 Pac. 641, infra, IV. a.

The time for performance may be enlarged. Stearns v. Hall (1851) 9 Cush. (Mass.) 31. In Hurlburt v. Fitzpatrick (1900) 176 Mass. 287, 57 N. E. 464, it is held that a subsequent oral modification extending the time for the performance of a contract for the purchase and sale of real estate is not within the Statute of Frauds, in

an action by the vendor to recover a cash payment from one with whom it had been deposited to pay over to the vendor in case the vendees failed to perform.

But in one case which makes this distinction the contract is not treated as binding, for although the extension was for a definite time, the party granting it is held authorized to repudiate it; but it is held in the case, which involved a lease, that it cannot be repudiated and a forfeiture declared until a reasonable notice of lessor's intention to do so has been given. Scheerschmidt v. Smith (1898) 74 Minn. 224, 77 N. W. 34.

A written lease within the Statute of Frauds may be modified by an oral agreement that the same may be terminated in a manner other than that provided in the writing, in the event that the lessor should not furnish heat for the leased premises. Conroy v. Toomay (1920) 234 Mass. 384, 125 N. E. 568.

A conveyance to a person subsequently agreed upon by the vendor and vendee relieves the vendor from an action for breach of his contract. Long v. Hartwell (1870) 34 N. J. L. 116; Moore v. McAllister (1857) 34 Miss. 500.

The foregoing cases proceed upon the theory that the Statute of Frauds does not undertake to regulate the performance of a contract. Cummings v. Arnold (1842) 3 Met. (Mass.) 486, 37 Am. Dec. 155; Stearns v. Hall (Mass.) and Scheerschmidt v. Smith (Minn.) supra. In Low v. Treadwell (Me.) supra, it is stated that the plaintiff, who was seeking a specific performance of the contract to convey, was seeking the performance of a written agreement, and he proved that he had so performed the condition precedent on his part as to be entitled to relief, and that, whether the time be the essence of his contract or not, it has been waived. Again, after referring to an English decision to the effect that an agreement to waive a contract for the purchase of land is as much an agreement concerning land as the original contract is, and therefore must be in writing, the court

states that, without expressing any opinion upon that point, "it is a sufficient answer that the waiver here, if any there was, did not relate to the purchase of the lands, but to the time of delivery of a quantity of bricks; those bricks, indeed, formed a consideration of the purchase, but the payment of the consideration may be proved by parol." The court, in sustaining a subsequent parol agreement between vendor and vendee that the vendee was to deliver the property given in payment of the land to a creditor of his, cites from Chitty on Contracts, 27, to the effect that a subsequent parol agreement not contradicting the terms of the original contract, but merely in continuance thereof, and in dispensation of the performance of its terms as in prolongation of the term of execution, is good, even in the case of a contract to reduce into writing under the Statute of Frauds. The court, in Cummings v. Arnold (Mass.) supra, argues: "The statute, therefore, requires a memorandum of the bargain to be in writing, that it may be made certain; but it does not undertake to regulate its performance. It does not say that such a contract shall not be varied by a subsequent oral agreement for a substituted performance; that is left to be decided by the rules and principles of law in relation to the admission of parol evidence to vary the terms of written contracts." The court refers to the case of Stowell v. Robinson (1837) 3 Bing. N. C. 928, 132 Eng. Reprint, 668, 5 Scott, 196, 3 Hodges, 197, 6 L. J. C. P. N. S. 326, and states that it "was decided on a mistaken construction and application of the Statute of Frauds, and that the distinction between the contract of sale, which is required to be in writing, and its subsequent performance, as to which the statute is silent, was overlooked or not sufficiently considered by the court; otherwise the decision, perhaps, might have been different."

It is accordingly held in these cases that one who has performed according to the substituted agreement may specifically enforce the agreement of the

other. Low v. Treadwell (Me.) supra.

One who has performed according to the oral agreement may maintain an action thereon. Stearns V. Hall (Mass.) supra, holding that one who had accepted an option within the time for which the same had been extended by oral agreement could maintain an action of assumpsit against the defendant for failure to comply with his agreement. The land which was the subject-matter of the contract was previously conveyed by the plaintiff to the defendant, apparently for the purpose of securing certain advances, the defendant agreeing to reconvey by a stated date if the plaintiff would pay what it had cost the defendant and his charges. This contract was extended by oral agreement, and within the time of the extended oral agreement the plaintiff had accepted. The plaintiff had sold the property, and the action in assumpsit was apparently brought to recover the difference between the selling price and what he was to pay the defendant.

See Scheerschmidt v. Smith (1898) 74 Minn. 224, 77 N. W. 34, infra, V.

One who has performed according to the oral agreement may set up the oral agreement in defense of an action for breach of the written agreement. Thus, it has been held that no action can be maintained for the breach of a contract for the sale of real estate, where the vendor-defendant has conveyed the land to the vendee's wife, as agreed upon by the parties. Long v. Hartwell (N. J.) supra.

One who has offered to perform according to the oral agreement may set up such offer which has been refused, as a defense to an action on the written agreement. Cummings v. Arnold (1842) 3 Met. (Mass.) 486, 37 Am. Dec. 155. The vendor had made a tender of the goods, but the purchaser had refused to comply with the oral agreement.

The doctrine is not confined to executed contracts. In fact the leading case on this theory involved an executory contract. Cummings v. Arnold

been executed, and substituted performance which rests merely on an executory agreement, and it is stated that substituted performance is substituting something else in the place. of what was agreed to be done in the writing. "And if an unexecuted oral agreement to do this is binding, other land, on other conditions, terms, and stipulations, may be orally agreed to be substituted in performance or satisfaction of the writing. This would be juggling with the statutes." After referring to the statement that one of the main designs of the Statute of Frauds was to prevent burdensome fabricated contracts from being imposed upon parties, the court continues: "But a contract is only burdensome because of the consequence of performance flowing from it. Per se, the contract is harmless. It is the performance that does the hurt. It is therefore at least equally proper to say that the principal design of the statute was to protect parties from the performance of burdensome contracts which they never made. Therefore, if you may enforce an oral agreement for a substituted performance of a written agreement, you apply the statute to the shadow, and withhold it from the substance. Such application of the statute only makes it necessary that parties have a contract in writing; then, under the guise of performance, the contract enforced is shown by parol."

Even in Massachusetts, if the subsequent oral agreement amounts to more than a substituted performance, if it amounts to a substituted contract, the oral agreement is invalid. Rosenfield v. Standard Bottling & Extracts Co. (1919) 232 Mass. 239, 122 N. E. 299, holding that a written contract within the Statute of Frauds, employing a traveling salesman for a period from three to five years, which provides for a commission on sales as compensation, and also for an advance of $25 per week and necessary traveling expenses, to be charged against the commission and deducted from the same at the expiration of the agreement, cannot be changed by an oral

agreement that the salesman shall be paid $25 per week, and discontinue his traveling, and waive his right to have an accounting for commission. IV. Rule that oral modification which has been acted upon is valid.

a. In general.

As shown above, the broad rule that a written contract within the Statute of Frauds cannot be modified by subsequent oral agreement has been applied, although the agreement as modified had been acted upon. On the contrary, in many cases where the agreement as modified had been acted upon, the rights of the parties have been held to be determined by the modified agreement.

United States.-Smiley v. Barker (1897) 28 C. C. A. 9, 55 U. S. App. 125, 83 Fed. 684.

V. Crist (1883)

Illinois.-Worden 106 Ill. 326. Kansas.-Welch v. McIntosh (1913) 89 Kan. 47, 130 Pac. 641.

Minnesota.-Blake v. J. Neils Lumber Co. (1910) 111 Minn. 513, 127 N. W. 450.

Mississippi.-Moore v. McAllister (1857) 34 Miss. 500.

Nebraska. - HECHT V. MARSH (reported herewith) ante, 1.

New York.-Thomson v. Poor (1895) 147 N. Y. 402, 42 N. E. 13; Imperator Realty Co. v. Tull (1920) 228 N. Y. 447, 127 N. E. 263.

North Carolina.-Alston v. Connell (1906) 140 N. C. 485, 53 S. E. 292.

Ohio.-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. See supra, II. b.

Oregon.-Neppach v. Oregon & C. R. Co. (1905) 46 Or. 374, 80 Pac. 482, 7 Ann. Cas. 1035; Scott v. Hubbard (1913) 67 Or. 498, 136 Pac. 653; Kingsley v. Kressly (1910) 60 Or. 167, 111 Pac. 385, 118 Pac. 678, Ann. Cas. 1913E, 746.

Pennsylvania.-Producers Coke Co. v. Hoover (1920) 268 Pa. 104, 110 Atl. 733.

Washington.-Whiting v. Doughton (1903) 31 Wash. 327, 71 Pac. 1026.

Wisconsin.-Hirsch Rolling Mill Co. v. Milwaukee & F. River Valley R. Co. (1917) 165 Wis. 220, 161 N. W. 741.

That an oral modification may be made good by conduct of the parties is recognized in an obiter statement in Philadelphia, W. & B. R. Co. v. Trimble (1870) 10 Wall. (U. S.) 383, 19 L. ed. 953.

In Harmison v. Prestonburg (1908) 32 Ky. L. Rep. 864, 107 S. W. 337, it is held that a written agreement between landowners, in platting land for an addition to a town, that a part of the land equal in width to a street of which it was an extension should be laid off, but that the same should not become a street, might be modified by a parol agreement that a narrow part of the strip should be excluded from the street, and was thus modified. The plat was drawn, the lots laid out, and a number of them sold with reference to the plat. It was held in Marsh v. Bellew (1878) 45 Wis. 36, that a written agreement for the sale of land, to be paid for at a price to be determined by the quantity of timber on the same, might be modified with regard to the price to be paid for the down timber on the land; but it is stated that under the original contract it was a matter of at least some doubt whether the vendee was bound to pay for any lumber or timber which was damaged or not merchantable; that this new agreement may, therefore, be treated as an amicable settlement by the parties and a determination of the construction which should be given to the original contract, and limiting it to such timber as was undamaged and merchantable, and making a new contract by which the defendant, in consideration of such construction of the original contract, agreed to take the down and damaged timber upon the land at the reduced price. The court states that there can be no doubt but that the vendors could enforce the same against the vendee after the defendant had executed the same on his part by cutting and converting the timber to his own use. The vendee in this case did not object to the enforce

A

ment of the agreement, and the court adds that there can certainly be no ground for refusing to enforce the same under such circumstances. subsequent oral agreement between vendor and vendee, by the terms of which the vendor is to accept a conveyance of property in lieu of a note which was to be assigned him, and which has been executed in part, at least, by delivery of the property, was sustained in Baker v. Robertson (1914) Tex. Civ. App., 163 S. W. 326. In Albert Mackie & Co. v. S. S. Dale & Sons (1920) 122 Miss. 430, 84 So. 453, a purchaser of six carloads of potatoes under a written agreement was held not entitled to recover damages for nondelivery, where, subsequently to entering into the written contract, an oral agreement was entered into between the parties that the purchaser would accept three cars instead of the six cars, in full satisfaction of performance of the contract, and in accord with the oral agreement three cars were tendered by the vendor. The court says: "There is much authority to the effect that a strict performance of a written contract within the Statute of Frauds may be waived by a parol understanding, or by words and acts inconsistent with an intention to require performance, where the other party has been misled or kept from performing. It has been frequently stated that the Statute of Frauds may not be used to perpetrate a fraud. . . The general rule that a contract required to be in writing cannot be altered or modified except by agreement in writing may be conceded. It is particularly to be noted in the present case that there is no effort to change, alter, or modify any of the terms of the contract as to quality of potato, the price, or time and place of performance. The simple contention is made that the purchaser agreed to accept one half of the property contracted to be delivered, and waive performance as to the other half. It is immaterial whether this action be termed a waiver, modification, or release. The parties acted upon the parol agreement, and, if the testimony on behalf of appellee be