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there is no part performance. See an action by the vendor to recover a Georgia cases cited in II. a, supra, and cash payment from one with whom it discussion in IV. a, infra.

had been deposited to pay over to the See Scheerschmidt v. Smith (1898) vendor in case the vendees failed to 74 Minn. 224, 77 N. W. 34, supra, II. b. perform.

Even in cases that so limit the rule, But in one case which makes this it is not every action that will render distinction the contract is not treated the oral modification good. This ques as binding, for although the extension tion receives further consideration in was for a definite time, the party subd. IV. infra.

granting it is held authorized to re

pudiate it; but it is held in the case, III. Rule that oral modification of a matter relating to the performance

which involved a lease, that it cannot is valid.

be repudiated and a forfeiture deIt has been held in some jurisdic

clared until a reasonable notice of

lessor's intention to do so has been tions that modification of certain terms of the contract relating to the

given. Scheerschmidt v. Smith (1898) performance thereof may be made by

74 Minn. 224, 77 N. W. 34.

A written lease within the Statute parol. The manner of making payment may be modified by parol. Low

of Frauds may be modified by an oral v. Treadwell (1835) 12 Me. 441, hold

agreement that the same may be termiing that an agreement for the sale of

nated in a manner other than that proland payable in brick might be modi

vided in the writing, in the event that

the lessor should not furnish heat fied so as to make delivery of the brick

for the leased premises. Conroy v. to a creditor of the vendor a payment. The bricks in this case had been

Toomay (1920) 234 Mass. 384, 125 N.

E. 568. delivered to the creditor of the vendor, and the purchaser was seeking

A conveyance to a person subsespecific performance of the contract

quently agreed upon by the vendor

and vendee relieves the vendor from to convey as provided in the writing.

action for breach of his conThe provision in a written contract for the sale of goods that the sale is made

tract. Long v. Hartwell (1870) 34 N. on credit may be modified by a sub

J. L. 116; Moore v. McAllister (1857)

34 Miss. 500. sequent oral agreement requiring the

The foregoing cases proceed upon purchaser to give a promissory note in

the theory that the Statute of Frauds payment, or to make payment in cash

does not undertake to regulate the at a discount. Cummings v. Arnold (1842) 3 Met. (Mass.) 486, 37 Am.

performance of a contract. Cummings

v. Arnold (1842) 3 Met. (Mass.) 486, Dec. 155. It is stated obiter in Lerned v. Wannemacher (1864)

(1864) 9


37 Am. Dec. 155; Stearns v. Hall

(Mass.) and Scheerschmidt v. Smith (Mass.) 412, an action upon a contract for the sale of coal in which the pur

(Minn.) supra. In Low v. Treadwell chasers agreed to send vessels for the

(Me.) supra, it is stated that the plain

tiff, who was seeking a specific persame, that an agreement that, if the

formance of the contract to convey, vessels were not sent, the coal should be shipped immediately, would be

was seeking the performance of a good, even if made only by parol. See

written agreement, and he proved that Welch v. McIntosh (1913) 89 Kan. 47,

he had so performed the condition 130 Pac. 641, infra, IV. a.

precedent on his part as to be entitled The time for performance may be

to relief, and that, whether the time enlarged. Stearns v. Hall (1851) 9

be the essence of his contract or not, Cush. (Mass.) 31. In Hurlburt v.

it has been waived. Again, after reFitzpatrick (1900) 176 Mass. 287, 57 ferring to an English decision to the N. E. 464, it is held that a subsequent

effect that an agreement to waive a oral modification extending the time contract for the purchase of land is for the performance of a contract for much an agreement concerning the purchase and sale of real estate is land as the original contract is, and not within the Statute of Frauds, in therefore must be in writing, the court



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states that, without expressing any

other. Low v. Treadwell (Me.) supra. opinion upon that point, “it is a suffi One who has performed according to cient answer that the waiver here, if the oral agreement may maintain an any there was, did not relate to the action


Stearns Hall purchase of the lands, but to the time (Mass.) supra, holding that one who of delivery of a quantity of bricks; had accepted an option within the those bricks, indeed, formed a con time for which the same had been sideration of the purchase, but the extended by oral agreement could payment of the consideration may be maintain an action of assumpsit proved by parol.” The court, in sus against the defendant for failure to taining a subsequent parol agreement comply with his agreement. The land between vendor and vendee that the which was the subject-matter of the vendee was to deliver the property contract was previously conveyed by given in payment of the land to a the plaintiff to the defendant, apparcreditor of his, cites from Chitty on ently for the purpose of securing Contracts, 27, to the effect that a sub certain advances, the defendant agreesequent parol agreement not contra ing to reconvey by a stated date if dicting the terms of the original the plaintiff would pay what it had contract, but merely in continuance cost the defendant and his charges. thereof, and in dispensation of the This contract was extended by oral performance of its terms as in pro agreement, and within the time of the longation of the term of execution, is extended oral agreement the plaintiff good, even in the case of a contract to had accepted. The plaintiff had sold reduce into writing under the Statute

the property, and the action in asof Frauds. The court, in Cummings sumpsit was apparently brought to v. Arnold (Mass.) supra, argues:

recover the difference between the "The statute, therefore, requires a

selling price and what he was to pay memorandum of the bargain to be in

the defendant. writing, that it may be made certain;

See Scheerschmidt v. Smith (1898) but it does not undertake to regulate its performance. It does not say that

74 Minn. 224, 77 N. W. 34, infra, V. such a contract shall not be varied by

One who has performed according a subsequent oral agreement for a

to the oral agreement may set up the substituted performance; that is left

oral agreement in defense of an ac

tion for breach of the written agreeto be decided by the rules and principles of law in relation to the ad

ment. Thus, it has been held that no

action can be maintained for the mission of parol evidence to vary the

breach of a contract for the sale of terms of written contracts.” The court refers to the case of Stowell v.

real estate, where the vendor-defendRobinson (1837) 3 Bing. N. C. 928, 132

ant has conveyed the land to the Eng. Reprint, 668, 5 Scott, 196, 3

vendee's wife, as agreed upon by the Hodges, 197, 6 L. J. C. P. N. S. 326,

parties. Long V. Hartwell (N. J.) and states that it “was decided on a

supra. mistaken construction and application

One who has offered to perform acof the Statute of Frauds, and that the

cording to the oral agreement may set distinction between the contract of

up such offer which has been refused, sale, which is required to be in writ

as a defense to an action on the writing, and its subsequent performance, ten agreement. Cummings v. Arnold as to which the statute is silent, was

(1842) 3 Met. (Mass.) 486, 37 Am. overlooked or not sufficiently consid

Dec. 155. The vendor had made a ered by the court; otherwise the de tender of the goods, but the purchascision, perhaps, might have been er had refused to comply with the oral different."

agreement. It is accordingly held in these cases The doctrine is not confined to exethat one who has performed according cuted contracts. In fact the leading to the substituted agreement may spe case on this theory involved an execucifically enforce the agreement of the tory contract. Cummings v. Arnold

(Mass.) supra.

And see Stearns v. ing, nor offer to do so, he, of course, Hall (1851) 9 Cush. (Mass.) 31.

has no defense to an action for breach So far as the oral agreement has of the contract. Whittier v. Dana been executed by one of the parties, (Mass.) supra, holding that a vendor the result is not distinguishable from of bricks, who had not delivered or that in the cases discussed in subd. offered to deliver the same, had no IV. infra.

defense to an action for breach of his The theory of the cases is that the contract. action is upon the written contract,

Without deciding the general queswhether a party who has performed tion whether the parties to a written according to the oral agreement is contract may or may not modify the seeking to compel the other party to various terms by a subsequent verbal perform his agreement according to agreement, it is held in this jurisdicthe writing, or whether the action is tion that a verbal modification cannot against the party whose obligation has be admitted as a ground for specific been modified by parol. In each in performance. Brooks v. Wheelock stance the oral agreement is treated (1831) 11 Pick. (Mass.) 439, holding as defensive matter, to be shown in that a vendor who had agreed to make answer to the claim that the party a deed upon the payment of a certain whose obligation has thus been modi note given him for the amount of the fied had not performed his agreement purchase money could not be comaccording to the writing. In other pelled to make a deed before the note words, the writing is held to exist for fell due, in pursuance of his verbal the purposes of the action, notwith agreement to make the deed upon standing the oral modification. It is payment of the note before due. The not invalidated by the oral modifica vendor refused to accept payment of tion. Whittier v. Dana (1865) 10 the notes not due, when tendered him Allen (Mass.) 326. It has been stat in accord with his verbal agreement. ed: “This distinction avoids the dif It is held in Roxbury Painting & ficulty suggested in some of the cases Decorating Co. v. Nute (1919) 233 cited, where it is said that to allow Mass. 112, 4 A.L.R. 680, 123 N. E. 391, a party to sue partly on a written and that parties may modify an executory partly on a verbal agreement would contract for the purchase of real esbe in direct opposition to the requisi tate by subsequent parol agreement. tions of the statute; and it undoubted Nothing is said in this case as to the ly would be; but no party having a Statute of Frauds, nor is anything right of action can be compelled to said as to the Statute of Frauds in the sue in this form. He may always de case of Gilman & Son v. Turner Tanclare on the written contract; and ning Machinery Co. (1919) 232 Mass. unless the defendant can prove per 573, 122 N. E. 747, a case relied upon formance according to the terms of by the court in the Nute Case. In the the contract, or according to the agree Gilman Case, a written agreement bement for a substituted performance, tween the lessor and lessee of a the plaintiff would be entitled to patented machine, as to the use therejudgment." Cummings v. Arnold of, was held to be subject to modifica(Mass.) supra.

tion by a subsequent oral contract. The earlier Massachusetts cases The doctrine of the foregoing cases have been construed as holding that has been expressly disapproved by "the action can be maintained only other courts. Rucker v. Harrington upon the written contract, because to (1892) 52 Mo. App. 481, approved in allow a party to sue partly on a writ Warren v. A. B. Mayer Mfg. Co. (1900) ten and partly on an oral agreement 161 Mo. 112, 61 S. W. 644; Ladd v. would be in direct contravention of King (1828) 1 R. I. 224, 51 Am. Dec. the statute.” If the party whose ob 624. It is pointed out in Rucker v. ligation has been modified by parol Harrington (Mo.) supra, that the does not perform that obligation, nor theory fails to distinguish between the one imposed upon him by the writ substituted performance which has


been executed, and substituted per agreement that the salesman shall be formance which rests merely on an paid $25 per week, and discontinue executory agreement, and it is stated his traveling, and waive his right to that substituted performance is sub have an accounting for commission. stituting something else in the place

IV. Rule that oral modification which of what was agreed to be done in the

has been acted upon is valid. writing. “And if an unexecuted oral agreement to do this is binding, other

a. In general. land, on other conditions, terms, and As shown above, the broad rule that stipulations, may be orally agreed to a written contract within the Statute be substituted in performance or sat of Frauds cannot be modified by subseisfaction of the writing. This would quent oral agreement has been applied, be juggling with the statutes.” After although the agreement as modified referring to the statement that one of had been acted upon. On the contrary, the main designs of the Statute of in many cases where the agreement as Frauds was to prevent burdensome modified had been acted upon, the fabricated contracts from being im- rights of the parties have been held to posed upon parties, the court con be determined by the modified agreetinues: “But contract is only ment. burdensome because of the conse United States.-Smiley v. Barker quence of performance flowing from (1897) 28 C. C. A. 9, 55 U. S. App. 125, it. Per se, the contract is harmless. 83 Fed. 684. It is the performance that does the California. Beach v. Covillard hurt. It is therefore at least equally (1854) 4 Cal. 315; Spencer V. Mcproper to say that the principal de Cament (1907) 7 Cal. App. 84, 93 Pac. sign of the statute was to protect 682. parties from the performance of bur Illinois.-Worden v. Crist (1883) densome contracts which they never 106 Ill. 326. made. Therefore, if you may enforce Kansas.--Welch v. McIntosh (1913) an oral agreement for a substituted 89 Kan. 47, 130 Pac. 641. performance of a written agreement, Minnesota.-Blake v. J. Neils Lumyou apply the statute to the shadow, ber Co. (1910) 111 Minn. 513, 127 N. and withhold it from the substance. W. 450. Such application of the statute only Mississippi.-Moore v. McAllister makes it necessary that parties have a (1857). 34 Miss. 500. contract in writing; then, under the Nebraska. — HECHT V. MARSH (reguise of performance, the contract en ported herewith) ante, 1. forced is shown by parol.”

New York.—Thomson v. Poor (1895) Even in Massachusetts, if the sub 147 N. Y. 402, 42 N. E. 13; Imperator sequent oral agreement amounts to Realty Co. v. Tull (1920) 228 N. Y. 447, more than substituted perform 127 N. E. 263. ance,-if it amounts to a substituted North Carolina.-Alston v. Connell contract,—the oral agreement is in (1906) 140 N. C. 485, 53 S. E. 292. valid. Rosenfield v. Standard Bottling Ohio. -Nonamaker v. Amos (1905) & Extracts Co. (1919) 232 Mass. 239, 73 Ohio St. 163, 4 L. A.(N.S.) 980, 122 N. E. 299, holding that a writ 112 Am. St. Rep. 708, 76 N. E. 949, 4 ten contract within the Statute of Ann. Cas. 170. See supra, II. b. Frauds, employing a traveling sales Oregon.–Neppach v. Oregon & C. R. man for a period from three to five Co. (1905) 46 Or. 374, 80 Pac. 482, years, which provides for a commis 7 Ann. Cas. 1035; Scott v. Hubbard sion on sales as compensation, and (1913) 67 Or. 498, 136 Pac. 653; Kingsalso for an advance of $25 per week ley v. Kressly (1910) 60 Or. 167, 111 and necessary traveling expenses, Pac. 385, 118 Pac. 678, Ann. Cas. 1913E, to be charged against the commis 746. sion and deducted from the same Pennsylvania.- Producers Coke Co. at the expiration of the agreement, v. Hoover (1920) 268 Pa. 104, 110 Atl. cannot be changed by


oral 733.


Washington-Whiting v. Doughton ment of the agreement, and the court (1903) 31 Wash. 327, 71 Pac. 1026. adds that there can certainly be no

Wisconsin.--Hirsch Rolling Mill Co. ground for refusing to enforce the v. Milwaukee & F. River Valley R. Co. same under such circumstances. А (1917) 165 Wis. 220, 161 N. W. 741. subsequent oral agreement between

That an oral modification may be vendor and vendee, by the terms of made good by conduct of the parties is which the vendor is to accept a conrecognized in an obiter statement in veyance of property in lieu of a note Philadelphia, W. & B. R. Co. v. Trimble which was to be assigned him, and (1870) 10 Wall. (U. S.) 383, 19 L. ed. which has been executed in part, at 953.

least, by delivery of the property, was In Harmison v. Prestonburg (1908) sustained in Baker v. Robertson (1914) 32 Ky. L. Rep. 864, 107 S. W. 337, it Tex. Civ. App. 163 S. W. 326. is held that a written agreement In Albert Mackie & Co. v. S. S. Dale & between landowners, in platting land Sons (1920) 122 Miss. 430, 84 So. 453, for an addition to a town, that a part a purchaser of six carloads of potatoes of the land equal in width to a street under a written agreement was held of which it was an extension should not entitled to recover damages for be laid off, but that the same should nondelivery, where, subsequently to not become a street, might be modified entering into the written contract, an by a parol agreement that a narrow oral agreement was entered into part of the strip should be excluded between the parties that the purchaser from the street, and was thus modified. would accept three cars instead of the The plat was drawn, the lots laid out, six cars, in full satisfaction of perand a number of them sold with refer formance of the contract, and in acence to the plat. It was held in Marsh cord with the oral agreement three v. Bellew (1878) 45 Wis. 36, that a writ cars were tendered by the vendor. The ten agreement for the sale of land, to court says: “There is much authority be paid for at a price to be determined to the effect that a strict performance by the quantity of timber on the same,

of a

written contract within the might be modified with regard to the Statute of Frauds may be waived by price to be paid for the down timber a parol understanding, or by words on the land; but it is stated that under and acts inconsistent with an intenthe original contract it was a matter tion to require performance, where the of at least some doubt whether the other party has been misled or kept vendee was bound to pay for any from performing. It has been frelumber or timber which was damaged quently stated that the Statute of or not merchantable; that this new Frauds may not be used to perpetrate agreement may, therefore, be treated a fraud.

The general rule that as an amicable settlement by the par a contract required to be in writing ties and a determination of the con cannot be altered or modified except struction which should be given to the by agreement in writing may be conoriginal contract, and limiting it to ceded. It is particularly to be noted such timber as was undamaged and in the present case that there is no merchantable, and making a new con effort to change, alter, or modify any tract by which the defendant, in con of the terms of the contract as to sideration of such construction of the quality of potato, the price, or time original contract, agreed to take the and place of performance. The simple down and damaged timber upon the contention is made that the purchaser land at the reduced price. The court agreed to accept one half of the states that there can be no doubt but property contracted to be delivered, that the vendors could enforce the and waive performance as to the other same against the vendee after the de half. It is immaterial whether this fendant had executed the same on his action be termed a waiver, modificapart by cutting and converting the tion, or release. The parties acted timber to his own use. The vendee in upon the parol agreement, and, if the this case did not object to the enforce- testimony on behalf of appellee be


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