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change in dimensions at the time the work was done, and accepted the mill as built and completed, and also accepted the policies of insurance procured on it as security in place of the mortgage.

Specific performance of the written contract will not be decreed when the complainant in the action has, by parol, waived or discharged the contract, and the defendant by such action has entered into obligations inconsistent with its performance; there is thus presented an equity that will bar the remedy of specific performance. Huffman v. Hummer (1866) 18 N. J. Eq. 83, 2 Mor. Min. Rep. 242. See Nonamaker v. Amos (Ohio) supra, II. b.

In an action for the specific performance of a written contract to convey real estate, it has been held competent for the defendant to show that, by a subsequent parol agreement, he was to retain the title until other money than that named in the original contract (which had been loaned by him) should be repaid, and he may properly refuse to convey until such other money is repaid. Hewlett v. Miller (1883) 63 Cal. 185. No mention is made of the Statute of Frauds in this case.

It has been held that specific performance of the substituted contract will be decreed, if the defendant admits the substituted contract, and the complainant chooses to perform it on his part. Ryno v. Darby (1869) 20 N. J. Eq. 231. It will be noticed that this was a case of substitution, not modification.

b. Theories.

The theories upon which the courts have based the holdings that, where a contract as orally modified has been acted upon, the modified contract determines the rights of the parties, are not harmonious. Waiver, estoppel, part performance, executed contract, and the rule that a court will not allow the Statute of Frauds to become an instrument of fraud have each been relied upon in support of the holdings. It is evident that not every act of a party in pursuance of the oral modification should render the modification

effective to determine the rights of the parties. As stated above, it is the theory of some cases that no such act renders the oral agreement effective unless it is accepted by the other party. Jones's Case (1875) 11 Ct. Cl. (Fed.) 733. And see Moore v. Campbell (Eng.) supra, II. a. But the Federal courts have not accepted this theory, as appears from Swain v. Seamens (1870) 9 Wall. (U. S.) 254, 19 L. ed. 554, and Smiley v. Barker (1897) 28 C. C. A. 9, 55 U. S. App. 125, 83 Fed. 684, infra. In fact, this theory has not been adopted generally. It is true that, if there is an acceptance of the performance according to the oral agreement, the rights of the parties must be determined thereby, but it does not follow from this that there must be an acceptance to render the oral agreement effective. It may become effective although not accepted. The extent to which the oral agreement must have been acted upon is a matter that is left in considerable doubt, largely through a failure of the courts to consider this phase of the question. An attempt will be made in this connection to show the acts that have taken place in pursuance of the oral modification, so far as this can be extracted from the reports, together with the discussion of this question which appears in a few cases. As stated above, the courts have relied on various theories to render the oral modification effective, and it is necessary to note these theories and show what acts have brought the theory adopted into operation.

That equity will not allow the Statute of Frauds to be used as an instrument of fraud is the reason given in some cases for holding the oral modification effective. It has been stated that under this rule equity will decree specific performance, or hold the maker of an oral contract estopped from denying it, when the other party, by virtue of it and under and in pursuance of it, has so far acted that it would be aiding in a fraud to permit the contract to be repudiated. Simonton v. Liverpool, L. & G. Ins. Co. (1874) 51 Ga. 80; 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. It is held in Kingston v. Walters (1908) 14 N. M. 368, 93 Pac. 700, that a court of equity, in order to prevent fraud, will take jurisdiction of an action by a vendee against his vendor to recover damages for failure of the vendor to perform his contract, where the vendee has performed the agreement stipulated by him therein. to be performed within an extended time granted by the vendor, where it was alleged that the vendor absented himself from his usual place of business, and remained absent for some time, thereby defeating payment within the time of the oral extension.

And it has been stated that courts of law, under proper allegations, will also grant relief in such a case. Simonton v. Liverpool, L. & G. Ins. Co. (Ga.) supra.

This rule was applied,

and the grantor of a tract of land with the right to a watercourse through adjoining lands owned by the grantor held to have no right to destroy the watercourse, which had been placed on another route verbally agreed upon by the parties subsequent to the deed, and which had been so maintained for a period of years prior to the time when the plaintiff in the action had purchased the property. Le Fevre v. Le Fevre (1818) 4 Serg. & R. (Pa.) 241, 8 Am. Dec. 696, supra, IV. a.

In holding that one party to a written contract for the exchange of real estate, who tenders performance according to an oral modification, can maintain an action in damages against the other party upon his default, the majority of the court in Imperator Realty Co. v. Tull (1920) 228 N. Y. 447, 127 N. E. 263, bases its decision upon estoppel. But Cardozo, J., who concurs in the result, says: "The statute says that a contract for the sale of real property 'is void unless the contract, or some note or memorandum thereof expressing the consideration, is in writing subscribed by the . . grantor, or by his lawfully authorized agent.' . . In this instance each party was a grantor, for the sale was an exchange. I think it is the law that, when contracts are subject to the

statute, changes are governed by the same requirements of form as original provisions. . . . Some courts have drawn a distinction between the formation of the contract and the regulation of performance. . . The distinction has been rejected in many jurisdictions. It has never

been accepted by this court, and the question of its validity has been declared an open one. . . . I think we should reject it now. The cases which maintain it hold that oral promises in such circumstances constitute an accord, and that an accord, though executory, constitutes a bar if there is a tender of performance.

There seems little basis for such a distinction in this state, where the rule is settled that an accord is not a bar unless received in satisfaction. . . . But there is another objection more fundamental and farreaching. I do not know where the line of division is to be drawn between variations of the substance and variations of the method of fulfilment. I think it is inadequate to say that oral changes are effective if they are slight, and ineffective if they are important. Such tests are too vague to supply a scientific basis of distinction. The problem, thus approached, gains, I think, a new simplicity. A contract is the sum of its component terms. Any variation of the parts is a variation of the whole. The requirement that there shall be a writing extends to one term as to another. There can, therefore, be no contractual obligation when the requirement is not followed. This is not equivalent to saying that what is ineffective to create an obligation must be ineffective to discharge one. Duties imposed by law, irrespective of contract, may regulate the relations of parties after they have entered into a contract. There may

be procurement or encouragement of a departure from literal performance which will forbid the assertion that the departure was a wrong. That principle will be found the solvent of many cases of apparent hardship. There may be an election which will preclude a forfeiture. There may be an acceptance of substituted perform

ance, or an accord and satisfaction.

What there may not be, when the subject-matter is the sale of land, is an executory agreement, partly written and partly oral, to which, by force of the agreement, and nothing else, the law will attach the attribute of contractual obligation. The contract, therefore, stood unchanged. The defendant might have retracted his oral promise an hour after making it, and the plaintiff would have been helpless. He might have retracted a week before the closing, and if a reasonable time remained within which to remove the violation, the plaintiff would still have been helpless. Retraction, even at the very hour of the closing, might not have been too late, if coupled with the offer of an extension which would neutralize the consequences of persuasion and reliance.

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The difficulty with the defendant's position is that he did none of these things. . I do not think we are driven by any requirement of the Statute of Frauds to sustain as lawful and effective this precipitous rescission, this attempt by an ex post facto revocation, after closing day had come and gone, to put the plaintiff in the wrong. Sometimes the resulting disability has been characterized as an estoppel, sometimes as a waiver. We need not go into the question of the accuracy of the description. The truth is that we are facing a principle more nearly ultimate than either waiver or estoppel-one with roots in the yet larger principle that no one shall be permitted to found any claim upon his own inequity, or take advantage of his own wrong. . . The Statute of Frauds was not intended to offer an asylum of escape from that fundamental principle of justice."

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As to what brings a case within the operation of the rule depends largely upon the facts of the individual case. It may be stated generally that the acts relied upon by the party seeking relief on the oral modification must have been taken by virtue of the oral contract, and under and in pursuance of it. If the acts relied upon have not been so taken, relief cannot be grant

ed. Simonton v. Liverpool L. & G. Ins. Co. (1874) 51 Ga. 80, supra, holding that an insured cannot recover upon an insurance policy upon the destruction of the insured goods in a location other than that stipulated in the policy, upon an oral statement made by an agent of the company at the time the goods were being removed that the company would agree to the change in location, and that he would fix it upon the books accordingly, where it appears that the insured would have removed the goods without the parol statement of the agent, and was in the act of removing them when it is charged to have been made. The court states that the most the insured claimed to have done in pursuance of the parol agreement is that they failed to take out a new policy, trusting, as they did, that their old one had, by the parol agreement of the agent, been altered. "It will be noted that they paid no money; they simply trusted to the parol agreement, and failed to take out another policy." The court concludes that this was not taking a new position by virtue of the contract, in fulfilment of their part of it, so as to bring it within the rule. One court states that, "to make out a case as we understand the law, the party seeking to set up a parol contract which the law requires to be in writing must show that he has done some act in performance of the contract upon his side, which act of performance has put him in a new position, so that it would be a fraud upon him to permit the other party, who has accepted this part performance, to repudiate it." Ibid.

The foregoing rule has not always been distinguished from that of part performance. Gerard-Fillio Co. v. McNair (1912) 68 Wash. 321, 123 Pac. 462, supra. It has been held that a part performance cannot be made out by mere nonaction on the part of one party to a contract, relying on the parol agreement modifying the writing, so as to take the case out of the statute. Augusta Southern R. Co. v. Smith & K. Co. (1899) 106 Ga. 864, 33 S. E. 28. Plaintiff alleged that, relying upon the parol agreement, it post

poned the doing of certain essential things beyond the time within which, under the original written contract, it had agreed to do the same. But see subd. V. infra. Nor, in the case of a sale of goods, does a part payment and acceptance of part of the goods, according to the terms of the written contract, put the written contract in the same category as parol contracts and written contracts not within the Statute of Frauds, thereby subjecting it to modification by a subsequent parol agreement. Willis v. Fields (1909) 132 Ga. 242, 63 S. E. 828. As to whether an oral contract that has been taken out of the statute by part payment, or acceptance of part of the goods, can be modified by subsequent oral agreement, is beyond the scope of this note, but see I. supra. Payment of the consideration is not sufficient to take a new contract, abrogating a former one, out of the operation of the statute. Thill v. Johnston (1910) 60 Wash. 393, 111 Pac. 225.

On the contrary, it has been stated obiter (Kribs v. Jones (1876) 44 Md. 396. And see Walter v. Victor G. Bloede Co. (1901) 94 Md. 80, 50 Atl. 433, supra) that, when a part of the goods which are the subject-matter of a sale within the 17th section of the Statute of Frauds have been received and accepted by the vendee, it is competent to prove the contract by parol evidence; consequently, a modification of the contract by parol is no violation of the Statute of Frauds; but in this case evidence of the subsequent modification was held inadmis. sible, because the declaration was based exclusively upon the written agreement. But where there is a performance, or a substantial part performance, by the party against whom the statute is invoked, such performance in pursuance of the oral modification may be used as a defense. Gerard-Fillio Co. v. McNair (1912) 68 Wash. 321, 123 Pac. 462, supra, holding that real-estate brokers could not recover the commission stipulated in a written agreement for the exchange of lands, where the parties liable for the commission had refused to carry 17 A.L.R.-4.

out the exchange unless the commission was reduced, and thereupon it was orally agreed that the commission should be reduced, whereupon the parties carried out the exchange in reliance upon the agreement.

In Oregon & W. R. Co. v. Elliott Bay Mill & Lumber Co. (1912) 70 Wash. 148, 126 Pac. 406, it was held that a lessor could not maintain an action of unlawful detainer against his lessee where, upon a dispute arising as to the title, it was orally agreed that the lessee should not pay him any rent, but might pay the other claimant, where the lessee, in pursuance of the agreement, ceased payment to the lessor and paid the other claimant.

In cases which apply the theories of waiver and estoppel, it has been held that mere nonaction by one party to a contract, induced by the other, prevents the latter from taking advantage of the Statute of Frauds. Alston v. Connell (1906) 140 N. C. 485, 53 S. E. 292. See Imperator Realty Co. v. Tull (1920) 228 N. Y. 447, 127 N. E. 263, supra; Kingston v. Walters (1911) 16 N. M. 59, 113 Pac. 594, supra, IV. a. See also Low v. Treadwell (1835) 12 Me. 441, supra, III.; Thomson v. Poor (1895) 147 N. Y. 402, 42 N. E. 13, and Spencer v. McCament (Cal.) infra, V.

A sale of land under a trust deed was sustained in Kelley v. Skates (1918) 117 Miss. 886, 78 So. 945, where the sale was held at a place other than that fixed in the trust deed, but at a place fixed by an oral agreement of the parties. This decision seems to rest upon the principle of estoppel, the court saying: "There was abundant evidence that he [the mortgagor] requested that the sale be made in Utica, and that he was duly informed of the time and changed place, and had an opportunity of being present. He, 'by his words and conduct,' is estopped now to question the validity of this sale."

In cases involving an extension of time, the act of the party seeking to take advantage of the statute in in-.. ducing the other to delay perform

ance is emphasized and held to constitute a waiver. Neppach v. Oregon & C. R. Co. (1905) 46 Or. 374, 80 Pac. 482, 7 Ann. Cas. 1035, holding that a vendor of land, the title to which was involved in a controversy, who requested of the vendees that payments should not be made according to the written contract until the controversy as to the title should be settled, and the vendees, in reliance upon this agreement, refrained from making the payments as they became due, although they were ready and willing to do so, cannot insist upon a forfeiture of the contract on account of the failure to make such payments. The court states that it is deemed "unnecessary to decide at this time whether a contract required by the statute to be in writing can be altered, as to the time or manner of performance, by a subsequent parol executory agreement between the parties." The action in this case was for breach of the contract. In Scott v. Hubbard (1913) 67 Or. 498, 136 Pac. 653, it is held that an owner of land who had given an option thereon, payments upon which were due monthly, who had agreed with the optionee to accept an advance payment by a certain date, but who, when tendered this payment, refused it, could not rescind the agreement for failure to make one of the monthly payments upon the date provided in the written agreement. The owner of the land had previously accepted monthly payments after they had become due, and the court states that his act created the impression that time was not of the essence of the agreement, and, not having given the optionee a written notice of any alteration of his supposed intention, he ought not to be permitted to insist upon a forfeiture of the contract for failure to make the monthly payment upon the date provided in the written agreement. It is held in Whiting v. Doughton (1903) 31 Wash. 327, 71 Pac. 1026, that a vendor who had told his vendee that the remaining payments on the contract under which the vendee had been let into posses

sion could be made at his convenience, in reliance upon which the vendee did not make payments at the time stipulated in writing, could not declare a forfeiture of the contract as provided in writing.

One court states: "We know of no principle of law which will permit a party to a contract, who is entitled to demand the performance by the other party of some act within a specified time, and who had consented to the postponement of the performance to a time subsequent to that fixed by the contract, and where the other party has acted upon such consent, and in reliance thereon has permitted the contract time to pass without performance, to subsequently recall such consent and treat the nonperformance within the original time as a breach of the contract. The original contract is not changed by such waiver, but it stands as an answer to the other party who seeks to recover damages for nonperformance induced by an unrecalled consent. The party may, in the absence of a valid and binding agreement to extend the time, revoke his consent so far as it has not been acted upon, but it would be most inequitable to hold that a default justified by the consent happening during its extension should furnish a ground of action." Thomson v. Poor (1895) 147 N. Y. 402, 42 N. E. 13, as will be seen by a reference to this case, infra, was not a case of pure extension of time, although so treated by the

courts.

See Arnot v. Union Salt Co. (1906) 186 N. Y. 501, 79 N. E. 719.

The court in Hirsch Rolling Mill Co. v. Milwaukee & F. River Valley R. Co. (1917) 165 Wis. 220, 161 N. W. 741, says it is not necessary to determine whether a written contract within the Statute of Frauds can be modified by parol agreement; that one party who has made such an agreement, upon which the other party has relied, is estopped from taking advantage of the failure of the latter to comply with the terms of the original contract.

Even assuming that the oral con

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