true, it would be very inequitable to award damages in this case." That a modification which has been acted upon by the parties, the position of one of them having been changed for the worse in reliance on the modification, precludes the other party from setting up the Statute of Frauds, is recognized in Rogers v. Maloney (1917) 85 Or. 61, 165 Pac. 357, a case involving a waiver. A statute providing that a written contract may be modified by an executed oral agreement was relied upon by the court in Re Turpin Hotel Co. (1918) 160 C. C. A. 165, 248 Fed. 25, in support of its conclusion that an agreement reducing the rent for the leased property, which has been acted upon by the parties, was a modification of the original lease. A contract extending the time for the performance of a vendor's contract to make a deed, which has been executed, is thereby taken out of the statute, so as to effect a release of a surety on the vendor's bond. Bever v. Butler (1833) Wright (Ohio) 367.

That the modified agreement determines the rights of the parties is especially true if there has been what amounts to a part performance. Gerard-Fillio Co. v. McNair (1912) 68 Wash. 321, 123 Pac. 462; Oregon & W. R. Co. v. Elliott Bay Mill & Lumber Co. (1912) 70 Wash. 148, 126 Pac. 406. An oral agreement modifying a written mining lease, after the discovery of certain conditions which made the lessee unwilling to go on with it as originally written, under which the lessee went on with operations, and mined for six months or more, and paid the lessor royalty according to the oral agreement, was held to be so far performed as to be taken out of the Statute of Frauds. Last Chance Min. Co. v. Tuckahoe Min. Co. (1918) Mo. App., 202 S. W. 287. An oral agreement modifying a written agreement for the sale of goods, entered into after the time fixed by the writing for the delivery of the goods had expired and a default had occurred, that the goods should be delivered at a certain time, was held to be good in McDonald v. Union Hay Co. (1919) 143 Minn. 40, 172 N. W.

891, where at the time of the oral modification a part of the goods called for in the contract had been delivered. The theory is not altogether clear; the court says: "The oral part of the agreement of that date did not alter the terms of the contract; it merely fixed the time within which the merchandise that should have been delivered long before might be delivered under the contract. It went to the performance of a subsisting contract of recognized validity. Scheerschmidt v. Smith (1898) 74 Minn. 224, 77 N. W. 34. Moreover, that was not an oral modification of a contract necessarily void unless in writing. True, it was a contract for the sale of goods of the value of more than $50; but if part of the goods were delivered and accepted, the contract need not be in writing. Sixty tons of the bran were delivered and accepted under this modification, and as part thereof. And there is no trouble with the consideration, for defendant was then in default-more than a reasonable time for dealing had elapsed-and a waiver of this breach was a consideration for defendant's promise to make shipment during April."

The action which has been taken by the parties in the cases which have held the rights of the parties determinable by the modified agreement has varied. In some it has consisted in nonaction, in reliance upon the oral modification. The relief which was being sought in the case in which the question arose has some bearing upon the question. Relief has, however, been granted in a great variety of actions. Thus, it has been held that a vendor of property can defend an action for breach of his contract to convey, by showing that he has conveyed the land which is the subject of the sale in pursuance of a subsequent oral agreement between the parties." Beach v. Covillard (1854) 4 Cal. 315. The facts are not clearly stated in this case. It was an action to recover damages for the breach of a covenant under seal to convey certain lots. the trial of the cause the defendants offered to show that they had conveyed one of said lots to a third party at the

On

verbal direction and request of the plaintiff, and also offered in evidence a receipt signed by the plaintiff for the "deed to said lots described in said bond." This testimony was excluded by the trial court, and a judgment rendered for the plaintiff. Upon appeal, this judgment was reversed and a new trial ordered. See McKinley v. Macbeth (1911) 113 Minn. 148, 129 N. W. 216, 389, infra. Likewise, a vendor can defend an action in specific performance by showing an oral agreement that the title was to be held until a note given for money borrowed by his vendee, on which he became surety, was paid. Worden v. Crist (1883) 106 Ill. 326. It is stated that the Statute of Frauds does not prevent the parties to an executory contract for the sale of real estate from agreeing by parol to change the terms of the contract and impose new conditions. In this case the legal title to the land in question was in a third party, and it was agreed by parol that the land should be held by the third party until the note was paid. Upon an action by an assignee of the bond for title, whose rights rose no higher than those of the vendee, in specific performance, his right to maintain the action was denied, the oral agreement being held a defense.

A party who has performed according to the oral agreement may maintain an action to compel performance by his vendor. Welch v. McIntosh (1913) 89 Kan. 47, 130 Pac. 641, holding that a vendor of real estate, who was to receive payment in a certain way, and who orally agreed to accept payment of a part of the purchase price. in cash, and a mortgage for the balance, whereupon a check for the cash payment and such a mortgage were given him, he agreeing to make a deed if, upon examination, he found no more against the mortgaged property than had been represented to him, could be compelled to convey the land as agreed. One who gave an option upon land, and who, when the optionee was arranging to secure and pay the sum stipulated, requested that the time for the payment of the same be extended beyond the period fixed in the writing,

is estopped from pleading the statute and denying his obligation under the contract, in an action by the optionee, who had performed within the time fixed by the oral extension, to enforce the obligation of the contract. It is stated that the optionee, "having consented to the delay at the request of [the optionor], will be taken to have been ready and willing to perform at the time stipulated in the written agreement. Having tendered the amount due within the period fixed by the postponement, he is in no default, and the extension having been given at [the optionor's] request and for his convenience, when the extended agreement itself and all the circumstances clearly implied that he regarded it as a valid and binding contract, and that he intended to live up to its terms, the law will not permit him now to repudiate its obligations, invoke for his protection the Statute of Frauds, and defeat the plaintiff's recovery, who has forborne a timely performance by reason of [his] request and in reasonable reliance on his assurance." Alston v. Connell (1906) 140 N. C. 485, 53 S. E. 292. It is held in Anderson v. Moore (1893) 145 Ill. 61, 33 N. E. 848, that the parties to a contract for the sale of real estate may agree by parol that, if the vendee will pay the entire purchase money, the vendor will deliver the deed therefor before the time fixed in the writing. Accordingly, a specific performance was granted, although the bill was filed before the time fixed in the writing for delivery of the deed. Nothing is said as to the Statute of Frauds. A vendee was granted specific performance in Maloughney v. Crowe (1912) 26 Ont. L. Rep. 579, 22 Ont. Week. Rep. 635, 3 Ont. Week. N. 1488. The parties in this case had modified the written agreement by providing that part of the purchase price should be paid at the time stipulated in the writing, and the balance should be paid at a subsequent date, upon which possession was to be delivered by the vendor. Apparently, at the time of the action, the entire sum was due.

See Spencer v. McCament (1907) 7

Cal. App. 84, 93 Pac. 682, infra, V. See Low v. Treadwell (1835) 12 Me. 441, supra, III. See Stark v. Wilson (1814) 3 Bibb (Ky.) 476, supra, II. b.

A party who has performed according to the oral agreement may recover according to the writing. Moore v. McAllister (1857) 34 Miss. 500, holding that the obligee in bonds given for the purchase money of lands, in each of which there was a clause that it was to be void unless, on or before the time it became due, the obligee made a good title to the land to the obligor, and the obligee failed to make title before the first obligation became due, but before the maturity of the second obligation, at the request of the obligor, procured the title to be conveyed to a third party, to whom the obligor had sold-might recover on the bonds against the obligor.

One who has performed according to the oral agreement may maintain an action in damages for nonperformance. Kingston v. Walters (1911) 16 N. M. 59, 113 Pac. 594, holding valid an oral extension of the time for the performance of the land contract so as to sustain an action by the vendee, who had performed within the time of the extension, against the vendor for damages for breach of his contract in refusing to perform. This is based in part in this case upon the principles of estoppel, the court stating that where a representation as to the future relates to an intended abandonment of an existing right, and is made to influence others, and they have been influenced by it to act, it operates as an estoppel. Where a written contract for the exchange of real estate, in which it was agreed that the seller should correct all circumstances amounting to violations of law or municipal ordinances, had been subsequently modified orally by an agreement that, instead of removing or correcting such violations, a sum in cash sufficient to correct them should be deposited, it was held that an action in damages might be maintained by one of the parties, who was ready and willing to comply with the oral agreement, against the other, who refused to convey. Imperator Realty Co. v.

Tull (1920) 228 N. Y. 447, 127 N. E. 263. According to the majority opinion, "the defendant, by his mutual oral contract with the plaintiff, is estopped from now claiming that the plaintiff, who relied thereon, was in default on the due day of the written contract because of its omission to then have the property free of the violations. He should not be allowed to take advantage of an omission induced by his unrevoked consent." Apparently, the plaintiff, in reliance upon the oral modification, failed to make any attempt to remove the grounds of violation. One who tendered goods sold within the time fixed by an oral extension of the written contract may maintain an action in damages against the other party for breach of his contract to accept. Hirsch Rolling Mill Co. v. Milwaukee & F. River Valley R. Co. (1917) 165 Wis. 220, 161 N. W. 741.

And it has been held that one who has performed in reliance upon the oral agreement may recover according to the oral agreement. Blake v. J. Neils Lumber Co. (1910) 111 Minn. 513, 127 N. W. 450, holding that one who had contracted to cut and deliver timber might recover an increased compensation orally agreed to, upon a valuable consideration, where, in reliance on the agreement, he went forward with his contract. The suit was for the increased compensation only, the compensation fixed in the writing having been paid.

One who has performed according to the oral agreement can defend an action on the writing. (HECHT V. MARSH (reported (reported herewith) ante, 1; Gerard-Fillio Co. v. McNair (1912) 68 Wash. 321, 123 Pac. 462; Oregon & W. R. Co. v. Elliott Bay Mill & Lumber Co. (1912) 70 Wash. 148, 126 Pac. 406) or for damages for default (Smiley v. Barker (1897) 28 C. C. A. 9, 55 U. S. App. 125, 83 Fed. 684, certiorari denied in (1897) 169 U. S. 736, 42 L. ed. 1216, 18 Sup. Ct. Rep. 940).

One who agreed to purchase a certain amount of bark to be peeled by him can defend an action for the purchase price for the amount fixed in the writing, where, by oral agreement, this

amount was reduced, and he had acted on the oral modification making his contracts accordingly. Thomson V. Poor (1895) 147 N. Y. 402, 42 N. E. 14. But see infra, V. One who has tendered performance according to the oral agreement has been held to have a defense against an action in damages for default. Albert Mackie & Co. v. S. S. Dale & Sons (1920) 122 Miss. 430, 84 So. 453. In this case a vendor of six carloads of potatoes was held to have a defense to an action in damages for nondelivery, where, in accord with an oral agreement subsequently entered into, he tendered three carloads, which the purchaser refused to accept. The court says: "In the case at bar, the party relying upon the subsequent parol agreement is purely on the defensive. Appellee is not seeking to compel performance, and is asking no affirmative relief at the hands of the court. The evidence which was objected to was admissible to show performance of the original written contract. There is no serious contention that appellee did not in fact secure three carloads of potatoes, and offer to ship them in accordance with all the terms of the original written contract. At the time appellant refused to accept the three cars, it was impossible, according to the testimony, for appellee then to secure the other three cars. Its failure to secure the three cars is justified by the parol understanding."

A vendor cannot declare a contract forfeited for nonpayment within the time fixed in the written agreement, where he has induced the delay. Neppach v. Oregon & C. R. Co. (1905) 46 Or. 374, 80 Pac. 482, 7 Ann. Cas. 1035; Whiting v. Doughton (1903) 31 Wash. 327, 71 Pac. 1026. See Smiley v. Barker (1897) 28 C. C. A. 9, 55 U. S. App. 125, 83 Fed. 684, certiorari denied in (1897) 169 U. S. 736, 42 L. ed. 1216, 18 Sup. Ct. Rep. 940, and Scott v. Hubbard (1913) 67 Or. 498, 136 Pac. 653, infra, IV. b.

This rule, that the rights of the parties must be determined by the modified agreement where it has been acted upon, is especially applicable where both parties have governed themselves

by the modified agreement, and the same has been fully executed. Doherty v. Doe (1893) 18 Colo. 456, 33 Pac. 165, holding that a lessor who had agreed to accept a less rent from his lessee than was stipulated in the writing, and had made a final settlement with him on this basis, has no cause of action against the lessee on the agreement as contained in the writing. Where the

rent provided in a lease has been reduced and the lesser sum paid, there can be no recovery of the sum stipulated in the writing. Bowman v. Wright (1902) 65 Neb. 661, 91 N. W. 580, 92 N. W. 580. The sum provided for in the parol agreement had been paid and accepted in full during the whole term of the lease. A written lease, by the terms of which the tenant was entitled to a portion of the net proceeds of the crop raised on the land, may be modified by oral agreement so as to entitle him to one half of the crop, and where the parties have acted upon it in its modified form, it is valid to the extent, and during the period, so acted upon and carried out. Denison v. Sawyer (1905) 95 Minn. 417, 104 N. W. 305, holding valid a chattel mortgage given by the tenant on the crop. Upon the authority of this case it was held in C. S. Brackett Co. v. Lofgren (1918) 140 Minn. 52, L.R.A.1918F, 998, 167 N. W. 274, that the Statute of Frauds did not render invalid the oral termination of a written lease within the Statute of Frauds, where the lessee vacated and the lessor repossessed himself of the premises in accord with the modified agreement. It was held further that the lessor could not recover rent at the rate stipulated in the written contract, where the parties agreed to reduce the rent, and month after month, for two years, the lessee paid and the lessor receipted for rents at the reduced rates. Where by mistake a contract between a vendor and vendee described too much land, and, upon discovery of the mistake, a proposal was made by the vendor to alter the terms of the written contract and there was an acceptance of the proposal by the vendee, the final payment, delivery, and acceptance of the deed

were held in Benesh v. Travelers' Ins. Co. (1905) 14 N. D. 39, 103 N. W. 405, to be a complete execution of that modification of the written contract within the meaning of a statute that a written contract may be altered by an executed parol agreement. Where, in pursuance of a subsequent oral contract authorizing an exchange of properties, instead of a sale as provided in the written agreement, the subject-matter of the written contract has passed beyond the control of the parties so that performance of the written contract on either side is impossible, the rights of the parties must be determined according to the subsequent modification; in such a case neither party can predicate any right of action on the writing against the other, because neither can aver performance or an offer to perform his part of such contract. Lucas v. Cass County (1905) 75 Neb. 351, 106 N. W. 217. It is held in McKinley v. Macbeth (1911) 113 Minn. 148, 129 N. W. 216, 389, that a party to a contract for the exchange of real estate, who has performed his agreement as modified by parol, is not in default so as to subject him to an action in damages for breach of the contract. The contract involved in this case was performed by both of the parties, and upon application for rehearing it was stated that, such being the fact, the bar of the Statute of Frauds was thereby removed from the entire contract. The question of the Statute of Frauds is not directly raised in Reed v. Chambers (1834) 6 Gill & J. (Md.) 490. In that case one who had purchased land of an execution debtor, agreeing to pay the amount of the execution and the amount of a mortgage on the premises and the balance to the vendor, agreed with the officer levying the execution, for the purpose of securing the title to the purchaser, that the land should be sold by the officer under the execution. Upon the execution sale the land was bid in by an assignee of the original purchaser at the sum agreed upon. The assignee then sold his title at an advance over this sum, with an understanding that his purchaser was to pay the mortgage debt and the judgment, and the balance

to him. As a method of securing the title for the last purchaser, it was agreed that he should be returned as the purchaser and obtain a deed from the sheriff. This was accordingly done, and the mortgage debt and the judgment discharged, and the balance paid into court. The action was by the last vendor to secure the balance of

the purchase money. Apparently in answer to the objection that the Statute of Frauds prevented this relief, the court states that the contract between the original vendor and his purchaser was legal and binding upon the parties, being in all respects perfectly conformable to the Statute of Frauds; that the verbal agreement subsequently entered into was no variation or change of the written contract for the sale of the land, but only indicated the mode in which the title was to be secured for the purchaser. In the subsequent Maryland case of Walter v. Victor G. Bloede Co. (1901) 94 Md. 80, 50 Atl. 433, the court states that the agreement in the former case was fully executed and the lien paid, and the surplus purchase money paid into court, so that there was in fact no question under the Statute of Frauds before the court, since the statute has no application to executed contracts. See Le Fevre v. Le Fevre (1818) 4 Serg. & R. (Pa.) 241, 8 Am. Dec. 696, infra, IV. b.

Where the other party has accepted the performance according to the oral agreement, he can then be compelled to perform according to his agreement contained in the writing. Salomon v. United States (1874) 19 Wall. (U. S.) 17, 22 L. ed. 46. See Welch v. McIntosh (1913) 89 Kan. 47, 130 Pac. 641, supra. In Swain v. Seamens (1870) 9 Wall. (U. S.) 254, 19 L. ed. 554, it was held that a mortgagee who had agreed to cancel and discharge the mortgage, and accept in its stead an insurance policy upon a mill of certain dimensions to be erected upon the mortgaged premises, could not, in a suit to compel him to cancel and discharge the mortgage as agreed in the written stipulation, set up that the mill was not of the dimensions fixed in the writing, where he acquiesced in a