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change in dimensions at the time the effective to determine the rights of the work was done, and accepted the mill parties. As stated above, it is the as built and completed, and also ac- theory of some cases that no such act cepted the policies of insurance pro- renders the oral agreement effective cured on it as security in place of the unless it is accepted by the other mortgage.

party. Jones's Case (1875) 11 Ct. Cl. Specific performance of the written (Fed.) 733. And see Moore v. Campcontract will not be decreed when the bell (Eng.) supra, II. a. But the Fedcomplainant in the action has, by eral courts have not accepted this parol, waived or discharged the con- theory, as appears from Swain v. Seatract, and the defendant by such action mens (1870) 9 Wall. (U. S.) 254, 19 has entered into obligations inconsist- L. ed. 554, and Smiley v. Barker (1897) ent with its performance; there is thus 28 C. C. A. 9, 55 U. S. App. 125, 83 Fed. presented an equity that will bar the 684, infra. In fact, this theory has not remedy of specific performance. Huff- been adopted generally. It is true man v. Hummer (1866) 18 N. J. Eq. 83, that, if there is an acceptance of the 2 Mor. Min. Rep. 242. See Nonamaker performance according to the oral v. Amos (Ohio) supra, II. b.

agreement, the rights of the parties In an action for the specific perform- must be determined thereby, but it ance of a written contract to convey does not follow from this that there real estate, it has been held competent must be an acceptance to render the for the defendant to show that, by a oral agreement effective. It may besubsequent parol agreement, he was to come effective although not accepted. retain the title until other money than The extent to which the oral agreethat named in the original contract ment must have been acted upon is a (which had been loaned by him) matter that is left in considerable should be repaid, and he may properly doubt, largely through a failure of the refuse to convey until such other courts to consider this phase of the money is repaid. Hewlett v. Miller question. An attempt will be made in (1883) 63 Cal. 185. No mention is this connection to show the acts that made of the Statute of Frauds in this have taken place in pursuance of the case.

oral modification, so far as this can be It has been held that specific per- extracted from the reports, together formance of the substituted contract with the discussion of this question will be decreed, if the defendant which appears in a few cases. As admits the substituted contract, and stated above, the courts have relied on the complainant chooses to perform it various theories to render the oral on his part. Ryno v. Darby (1869) 20 modification effective, and it is necesN. J. Eq. 231. It will be noticed that sary to note these theories and show this was a case of substitution, not what acts have brought the theory modification.

adopted into operation.

That equity will not allow the b. Theories.

Statute of Frauds to be used as an The theories upon which the courts instrument of fraud is the reason have based the holdings that, where a given in some cases for holding the contract as orally modified has been oral modification effective. It has been acted upon, the modified contract de- stated that under this rule equity will termines the rights of the parties, are decree specific performance, or hold not harmonious. Waiver, estoppel, the maker of an oral contract estopped part performance, executed contract, from denying it, when the other party, and the rule that a court will not allow by virtue of it and under and in purthe Statute of Frauds to become an suance of it, has so far acted that it instrument of fraud have each been would be aiding in a fraud to permit relied upon in support of the holdings. the contract to be repudiated. SimonIt is evident that not every act of a ton v. Liverpool, L. & G. Ins. Co. (1874) party in pursuance of the oral modi- 51 Ga. 80; Gerard-Fillio Co. v. McNair fication should render the modification (1912) 68 Wash. 321, 123 Pac. 462;


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Oregon & W. R. Co. v. Elliott Bay Mill statute, changes are governed by the & Lumber Co. (1912) 70 Wash. 148, same requirements of form as original 126 Pac. 406. It is held in Kingston provisions. .. Some courts have v. Walters (1908) 14 N. M. 368, 93 Pac. drawn a distinction between the for700, that a court of equity, in order to mation of the contract and the regulaprevent fraud, will take jurisdiction of tion of performance.

. The an action by a vendee against his distinction has been rejected in many vendor to recover damages for failure jurisdictions.

It has never of the vendor to perform his contract, been accepted by this court, and the where the vendee has performed the question of its validity has been deagreement stipulated by him therein clared an open one.

I think to be performed within an extended we should reject it now. The cases time granted by the vendor, where it which maintain it hold that oral was alleged that the vendor absented

promises in such circumstances conhimself from his usual place of busi- stitute an accord, and that an accord, ness, and remained absent for some though executory, constitutes a bar if time, thereby defeating payment with- there is a tender of performance. in the time of the oral extension.

. There seems little basis for And it has been stated that courts such a distinction in this state, where of law, under proper allegations, will the rule is settled that an accord is also grant relief in such case. not a bar unless received in satisfacSimonton v. Liverpool, L. & G. Ins. Co. tion. ... But there is another ob(Ga.) supra.

This rule was applied, jection more fundamental and farand the grantor of a tract of land with reaching. I do not know where the the right to a watercourse through line of division is to be drawn between adjoining lands owned by the grantor variations of the substance and variheld to have no right to destroy the ations of the method of fulfilment. I watercourse, which had been placed on think it is inadequate to say that oral another route verbally agreed upon by changes are effective if they are slight, the parties subsequent to the deed, and and ineffective if they are important. which had been so maintained for a Such tests are too vague to supply a period of years prior to the time when scientific basis of distinction. the plaintiff in the action had pur- The problem, thus approached, gains, chased the property. Le Fevre v. Le I think, a new simplicity. A contract Fevre (1818) 4 Serg. & R. (Pa.) 241, is the sum of its component terms. 8 Am. Dec. 696, supra, IV. a.

Any variation of the parts is a variIn holding that one party to a writ- ation of the whole. The requirement ten contract for the exchange of real that there shall be a writing extends estate, who tenders performance ac- to one term as to another. There can, cording to an oral modification, can therefore, be no contractual obligamaintain an action in damages against tion when the requirement is not folthe other party upon his default, the lowed. This is not equivalent to saymajority of the court in Imperator ing that what is ineffective to create Realty Co. v. Tull (1920) 228 N. Y. an obligation must be ineffective to 447, 127 N. E. 263, bases its decision discharge one. Duties imposed by law, upon estoppel. But Cardozo, J., who irrespective of contract, may regulate concurs in the result, says: “The the relations of parties after they have statute says that a contract for the entered into a contract.

There may sale of real property 'is void unless the be procurement or encouragement of a contract, or some note or memorandum departure from literal performance thereof expressing the consideration, which will forbid the assertion that is in writing subscribed by the .. the departure was a wrong.

That grantor, or by his lawfully authorized principle will be found the solvent of agent.' In this instance each

many cases of apparent hardship. party was a grantor, for the sale was There may be an election which will an exchange. I think it is the law preclude a forfeiture. There may be that, when contracts are subject to the an acceptance of substituted performance, or an accord and satisfaction. ed. Simonton v. Liverpool L. & G. Ins.

What there may not be, when Co. (1874) 51 Ga. 80, supra, holding the subject matter is the sale of land, that an insured cannot recover upon an is an executory agreement, partly insurance policy upon the destruction written and partly oral, to which, by of the insured goods in a location force of the agreement, and nothing other than that stipulated in the else, the law will attach the attribute policy, upon an oral statement made by of contractual obligation. The con- an agent of the company at the time tract, therefore, stood unchanged. the goods were being removed that the The defendant might have retracted company would agree to the change his oral promise an hour after making in location, and that he would fix it it, and the plaintiff would have been upon the books accordingly, where it helpless. He might have retracted a appears that the insured would have week before the closing, and if a rea- removed the goods without the parol sonable time remained within which statement of the agent, and was in the to remove the violation, the plaintiff act of removing them when it is would still have been helpless. Re- charged to have been made. The traction, even at the very hour of the court states that the most the insured closing, might not have been too late, claimed to have done in pursuance of if coupled with the offer of an exten- the parol agreement is that they sion which would neutralize the con- failed to take out a new policy, trustsequences of persuasion and reliance. ing, as they did, that their old one had,

. The difficulty with the defend- by the parol agreement of the agent, ant's position is that he did none of been altered. "It will be noted that these things.

I do not think they paid no money; they simply we are driven by any requirement of trusted to the parol agreement, and the Statute of Frauds to sustain as failed to take out another policy.” The lawful and effective this precipitous court concludes that this was not takrescission, this attempt by an ex posting a new position by virtue of the facto revocation, after closing day had contract, in fulfilment of their part of come and gone, to put the plaintiff in it, so as to bring it within the rule. the wrong.

Sometimes the re- One court states that, “to make out a sulting disability has been character

case as we understand the law, the ized as an estoppel, sometimes as a party seeking to set up a parol conwaiver.

We need not go into tract which the law requires to be in the question of the accuracy of the writing must show that he has done description.

The truth is that some act in performance of the conwe are facing a principle more nearly tract upon his side, which act of ultimate than either waiver or estop- performance has put him in a new popel-one with roots in the yet larger sition, so that it would be a fraud principle that no one shall be permit- upon him to permit the other party, ted to found any claim upon his own who has accepted this part performinequity, or take advantage of his own ance, to repudiate it.” Ibid. wrong. ... The Statute of Frauds The foregoing rule has not always was not intended to offer an asylum been distinguished from that of part of escape from that fundamental performance. Gerard-Fillio Co. v. principle of justice.”

McNair (1912) 68 Wash. 321, 123 Pac. As to what brings a case within the 462, supra.

It has been held that a operation of the rule depends largely part performance cannot be made out upon the facts of the individual case. by mere nonaction on the part of one It may be stated generally that the

party to a contract, relying on the acts relied upon by the party seeking parol agreement modifying the writrelief on the oral modification must ing, so as to take the case out of the have been taken by virtue of the oral statute. Augusta Southern R. Co. v. contract, and under and in pursuance Smith & K. Co. (1899) 106 Ga. 864, 33 of it. If the acts relied upon have not S. E. 28. Plaintiff alleged that, relybeen so taken, relief cannot be grant- ing upon the parol agreement, it post

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poned the doing of certain essential out the exchange unless the commisthings beyond the time within which, sion was reduced, and thereupon it under the original written contract, it was orally agreed that the commission had agreed to do the same. But see

should be reduced, whereupon the subd. V. infra. Nor, in the case of parties carried out the exchange in a sale of goods, does a part pay- reliance upon the agreement. ment and acceptance of part of the In Oregon & W. R. Co. v. Elliott Bay goods, according to the terms of Mill & Lumber Co. (1912) 70 Wash. the written contract, put the written 148, 126 Pac. 406, it was held that a contract in the same category as parol lessor could not maintain an action contracts and written contracts not of unlawful detainer against his within the Statute of Frauds, thereby lessee where, upon a dispute arising subjecting it to modification by a sub- as to the title, it was orally agreed sequent parol agreement. Willis v. that the lessee should not pay him Fields (1909) 132 Ga. 242, 63 S. E. any rent, but might pay the other 828. As to whether an oral contract claimant, where the lessee, in purthat has been taken out of the stat- suance of the agreement, ceased payute by part payment, or acceptance ment to the lessor and paid the other of part of the goods, can be modified claimant. by subsequent oral agreement, is In cases which apply the theories beyond the scope of this note, but of waiver and estoppel, it has been see I. supra. Payment of the con- held that mere nonaction by one sideration is not sufficient to take a party to a contract, induced by the new contract, abrogating a former other, prevents the latter from takone, out of the operation of the stat- ing advantage of the Statute of ute. Thill v. Johnston (1910) 60 Frauds. Alston v. Connell (1906) Wash. 393, 111 Pac. 225.

140 N. C. 485, 53 S. E. 292. See ImOn the contrary, it has been stated perator Realty Co. v. Tull (1920) 228 obiter (Kribs v. Jones (1876) 44 Md. N. Y. 447, 127 N. E. 263, supra; 396. And see Walter v. Victor G. Kingston v. Walters (1911) 16 N. M. Bloede Co. (1901) 94 Md. 80, 50 Atl. 59, 113 Pac. 594, supra, IV. a. See 433, supra) that, when a part of the also Low v. Treadwell (1835) 12 Me. goods which are the subject-matter 441, supra, III.; Thomson v. Poor of a sale within the 17th section of (1895) 147 N. Y. 402, 42 N. E. 13, and the Statute of Frauds have been re- Spencer v. McCament (Cal.) infra, V. ceived and accepted by the vendee, it A sale of land under a trust deed is competent to prove the contract by was sustained in Kelley V. Skates parol evidence; consequently, a modi- (1918) 117 Miss. 886, 78 So. 945, fication of the contract by parol is no where the sale was held at a place violation of the Statute of Frauds; other than that fixed in the trust but in this case evidence of the subse. deed, but at a place fixed by an oral quent modification was held inadmis, agreement of the parties. This decisible, because the declaration was sion seems to rest upon the princibased exclusively upon the written ple of estoppel, the court saying: agreement. But where there is a per- “There was abundant evidence formance, or a substantial part per- that he [the mortgagor] requested formance, by the party against whom that the sale be made in Utica, and the statute is invoked, such perform- that he was duly informed of the ance in pursuance of the oral modifi- time and changed place, and had an cation may be used as a defense. opportunity of being present. He, Gerard-Fillio Co. v. McNair (1912) 68 'by his words and conduct,' is esWash. 321, 123 Pac. 462, supra, hold- topped now to question the validity ing that real-estate brokers could not of this sale." recover the commission stipulated in In cases involving an extension of a written agreement for the exchange time, the act of the party seeking to of lands, where the parties liable for take advantage of the statute in inthe commission had refused to carry ducing the other to delay perform

17 A.L.R.-4.


ance is emphasized and held to con- sion could be made at his convenstitute a waiver. Neppach v. Oregon ience, in reliance upon which the & C. R. Co. (1905) 46 Or. 374, 80 Pac. vendee did not make payments at the 482, 7 Ann. Cas. 1035, holding that a time stipulated in writing, could not vendor of land, the title to which was declare a forfeiture of the contract involved in a controversy, who re- as provided in writing. quested of the vendees that pay- One court states: “We know of no ments should not be made according principle of law which will permit a to the written contract until the con- party to a contract, who is entitled troversy as to the title should be set- to demand the performance by the tled, and the vendees, in reliance other party of some act within a upon this agreement, refrained from specified time, and who had conmaking the payments as they became sented to the postponement of the due, although they were ready and performance to a time subsequent to willing to do so,.cannot insist upon a that fixed by the contract, and where forfeiture of the contract on account the other party has acted upon such of the failure to make such pay- consent, and in reliance thereon has ments. The court states that it is permitted the contract time to pass deemed “unnecessary to decide at without performance, to subsequentthis time whether contract re- ly recall such consent and treat the quired by the statute to be in writ- nonperformance within the original ing can be altered, as to the time or time as a breach of the contract. manner of performance, by a subse- The original contract is not changed quent parol executory agreement be- by such waiver, but it stands as an tween the parties.” The action in answer to the other party who seeks this case was for breach of the con- to recover damages for nonperformtract. In Scott v. Hubbard (1913) ance induced by an unrecalled con67 Or. 498, 136 Pac. 653, it is held sent. The party may, in the absence that an owner of land who had given of a valid and binding agreement to an option thereon, payments upon extend the time, revoke his consent which were due monthly, who had so far as it has not been acted upon, agreed with the optionee to accept an but it would be most inequitable to advance payment by a certain date, hold that a default justified by the but who, when tendered this pay- consent happening during its extenment, refused it, could not rescind sion should furnish a ground of acthe agreement for failure to make tion." Thomson v. Poor (1895) 147 one of the monthly payments upon N. Y. 402, 42 N. E. 13, as will be seen the date provided in the written by a reference to this case, infra, agreement. The owner of the land was not a case of pure extension of had previously accepted monthly pay- time, although SO treated by the ments after they had become due, courts. and the court states that his act cre- See Arnot v. Union Salt Co. (1906) ated the impression that time was 186 N. Y. 501, 79 N. E. 719. not of the essence of the agreement, The court in Hirsch Rolling Mill and, not having given the optionee Co. v. Milwaukee & F. River Valley a written notice of any alteration of R. Co. (1917) 165 Wis. 220, 161 N. W. his supposed intention, he ought not 741, says it is not necessary to deto be permitted to insist upon a forfei- termine whether a written contract ture of the contract for failure to within the Statute of Frauds can be make the monthly payment upon the modified by parol agreement; that date provided in the written agree- one party who has made such an ment. It is held in Whiting agreement, upon which the other Doughton (1903) 31 Wash. 327, 71 party has relied, is estopped from Pac. 1026, that a vendor who had told taking advantage of the failure of his vendee that the remaining pay- the latter to comply with the terms ments on the contract under which of the original contract. the vendee had been let into posses- Even assuming that the oral con


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