tract is invalid, the acts of the party inducing the other not to perform constitute a waiver. A vendor of sheep who wrote his vendee, suggesting a change in the method of delivery, which was agreed to by the vendee, who was thereby induced to remain away from the place of delivery according to the written contract, and from performing according to the written contract, will be held to have waived delivery and payment at the time and place named in the written contract. He cannot, therefore, declare a default on the part of the vendee, and refuse to return an advance payment on the purchase price, nor can he recover damages for such 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. Upon failure of the vendee to perform according to the written contract, the vendor sold the sheep to other parties and thereby disenabled himself from performing.

The fact that the oral agreement involved matters other than a mere extension of time does not affect this, especially where the other matters were contingent upon the happening of an event which did not occur, so that nothing is claimed upon this part of the agreement. Neppach v. Oregon & C. R. Co. (Or.) supra. In addition to providing for the extension of the time for making payment, as is shown supra, the agreement provided that, if it should finally be determined that the vendor had no title to the premises, the vendees should make no claim for damages, but should be entitled to a return of the money already paid, the controversy over the title having been settled in favor of the vendor. The contingency herein provided for did not occur.

But see Banister v. Fallis (1911) 85 Kan. 320, 116 Pac. 822, infra, V.

Some cases in which affirmative action has been taken by the party against whom the statute is invoked consider the necessity of such action having been taken in reliance

upon the oral agreement to work an estoppel. Where it was agreed be tween a mortgagor and a mortgagee that the mortgagor should erect a sawmill of certain dimensions upon the mortgaged premises, and that the mortgagee would then release the mortgage and accept as security an insurance policy on the mill, and the mortgagee, by his conduct and express declarations, led the mortgagor to believe that he was content with the change made in the specifications of the mill, and thereby induced the mortgagee to erect a mill upon the changed specifications, he is estopped to refuse to discharge the mortgage because the mill does not comply with the specifications in the writing. Swain v. Seamens (1870) 9 Wall. (U. S.) 254, 18 L. ed. 554.

It has been stated, in a case which proceeds upon the assumption that an executory oral agreement for the extension of time of performance of a written contract within the Statute of Frauds is invalid, that the oral stipulation can be revoked at any time upon giving the other party notice of the intention to do so, and a reasonable time after such notice to comply with its agreements as provided in the written contract. Neppach v. Oregon & C. R. Co. (1905) 46 Or. 374, 80 Pac. 482, 7 Ann. Cas. 1035, involving the oral extension by a vendor, of time for making payment by the vendees, wherein revocation of the oral extension was not pleaded as a defense. It is stated in this case that a letter written by the vendor to the vendees was not delivered to the vendees until the day on which the time allowed to make the payment expired, and that a reasonable time was not allowed, after the receipt of such letter, in which to make the payment.

That the agreement may be revoked is also the theory of Thomson v. Poor (1895) 147 N. Y. 402, 42 N. E. 14, and apparently the theory of Imperator Realty Co. v. Tull (1920) 228 N. Y. 447, 127 N. E. 263.

See Scott v. Hubbard (1913) 67 Or. 498, 136 Pac. 653, supra.

After the contract has expired

there can be no oral agreement extending the time; there must then be a new agreement, which must be in writing. Kingsley v. Kressly (1911) 60 Or. 167, 111 Pac. 385, 118 Pac. 678, Ann. Cas. 1913E, 746.

But see McDonald v. Union Hay Co. (1919) 143 Minn. 40, 172 N. W. 891, supra, IV. a.

Modification after the expiration of the contract is not, however, considered in this annotation.

the

Other cases proceed upon theory that the execution of the oral modification takes it out of the Statute of Frauds. Beach v. Covillard (1854) 4 Cal. 315. See supra, IV. a, for facts. In Blake v. J. Neils Lumber Co. (1910) 111 Minn. 513, 127 N. W. 450, it is held that a contract for the cutting and delivery of timber, by the terms of which one of the parties was to perform the work and receive a certain compensation, could be modified by oral agreement by stipulating an additional compensation, and when, in reliance upon the new agreement, the party had fully performed the contract as modified, he could recover the price agreed upon orally. The written contract covered several seasons, but the oral agreements were from season to season, and the recovery was sought on the work done for one season. This was held a severable contract, on which the recovery might be had as above stated.

In Moore v. McAllister (1857) 34 Miss. 500, a case in which a vendor, who had conveyed to a third person at the oral request of the vendee, was seeking to recover on bonds given for the purchase price, the contract is treated as fully executed. The court says: The Statute of Frauds "has relation alone to executory contracts, and can never apply to contracts which have been fully executed, for the reason that such contracts as the latter can never be made the foundation of an action unless they should be connected with some collateral matter. It may be true that this new arrangement could not be enforced if it were merely executory, but this is not the question.

The object was not to make a new' contract, but merely to stipulate what should be a performance of the original contract, and it certainly cannot be contended that the parties could not agree that performance might be made in a manner different from that originally stipulated. The party bound to convey performed his contract as soon as he complied with its terms or conveyed in the manner prescribed by the party interested. Performance of contracts may be waived either as to time, place, or manner of performance."

Where the agreement is fully executed by both parties, it is taken out of the statute, as shown in IV. a, supra.

Some cases do not seem to rely upon the fact that action had been taken upon the oral modification. Worden v. Crist (1883) 106 Ill. 326, where the party against whom the statute was invoked had assumed obligations as surety on the strength of an oral agreement. It has been held in this jurisdiction that a vendor who has orally agreed to accept a balance on the contract before due, and make a deed for the property, may be compelled to perform his agreement. Anderson v. Moore (1893) 145 Ill. 61, 33 N. E. 848, the court stating that this amounts to a waiver of the time of payment, and is good although made by parol.

V. Extension of time.

The character of alterations of written contracts which have been adjudicated are many and varied, as will be seen by reference to the foregoing subdivisions of this note. There is one alteration which has been before the courts frequently, and which involves distinct questions, so that it has been deemed advisable to make it the subject of an independent subdivision. The alteration in question is that extending the time for the performance of written agreements. It is the theory of some cases that the time for the performance of a written contract within the Statute of Frauds cannot be modified by subsequent oral

agreement. Walter V. Victor G. Bloede Co. (1901) 94 Md. 80, 50 Atl. 433; Abell V. Munson (1869) 18 Mich. 306, 100 Am. Dec. 165; Cook v. Bell (1869) 18 Mich. 387; Ladd v. King (1849) 1 R. I. 224, 51 Am. Dec. 624.

See also Com. use of Ledford v. Hinson (1911) 143 Ky. 428, L.R.A. 1917B, 139, 136 S. W. 912, Ann. Cas. 1912D, 291, where, however, the court treats the extension as a new agreement rather than a modifica tion. It is stated obiter in Hasbrouck v. Tappen (1818) 15 Johns. (N. Y.) 200, that a parol agreement to extend the time for the perform ance by the vendor of his contract to convey land is void under the Statute of Frauds. In Blood v. Goodrich (1832) 9 Wend. (N. Y.) 68, 24 Am. Dec. 121, the court states that the doctrine that the time of performance of a written contract may be enlarged by parol does not apply to contracts for the conveyance of land, or to any other contract where the contract itself would not have been valid if made by parol. But see Thomson v. Poor (1895) 147 N. Y. 402, 42 N. E. 14, supra, IV. a. A written agreement for the sale of land in which the vendor agreed to make the title, provided the vendee complied with the terms of the agreement within a stated time, cannot be extended by parol. Doar v. Gibbes (1831) 8 S. C. Eq. (Bail.) 371. The action in this case was by the vendee for specific performance, and the relief sought is denied, also, on the ground that the court had a discretion in such an action. A vendor who has sold and conveyed land under an agreement that the vendee should search upon the land for coal, and, if coal should be found by a stated date, an additional sum should be paid, cannot recover the additional sum where coal was not found for a number of years after the expiration of the time fixed in the contract, on the strength of a parol agreement to extend the time for making the search. Heth v. Wooldridge (1828) 6 Rand. (Va.) 605, 18 Am. Dec. 751. A contract with the United States

government to furnish cloth, which by a special statute is required to be in writing, cannot be modified by an extension of time by parol. Jones v. United States (1875) 11 Ct. Cl. (Fed.) 733. That an oral extension for a longer period than a year is within the Statute of Frauds is the opinion expressed in Hogan V. Crawford (1869) 31 Tex. 634, but that case turned upon a lack of consideration sufficient to sustain the agreement, independently of the Statute of Frauds. And see Bullis v. Presidio Min. Co. (1889) 75 Tex. 540, 12 S. W. 397, and Adams v. Hughes (1911) Tex. Civ. App. 140 S. W. 1163, infra. The postponement of the time. for performance of a logging contract is treated in Barton v. Gray

(1885) 57 Mich. 622, 24 N. W. 638, more in the nature of an independent contract, and it is stated that it must be a valid and binding agreement between the parties, not void under the Statute of Frauds. The jury having found that the oral agreement relative to the extension of time of performance could not by its terms be performed within one year from the time of the making thereof, it was void under the Statute of Frauds, and as a necessary consequence was held a mere nullity, so that it could not be used for any purpose. That the time for the payment of premiums on a life insurance policy cannot be changed, see Mitchell v. Universal L. Ins. Co. (1875) 54 Ga. 289, supra, II. b. A written option for the purchase of land cannot be extended by oral agreement. Adamson v. Vachon (1912) 5 Sask. L. R. 040, 8 D. L. R. 240.

See Augusta Southern R. Co. v. Smith & K. Co. (1899) 106 Ga. 864, 33 S. E. 28, supra, IV. b; Hawkins v. Studdard (1909) 132 Ga. 265, 131 Am. St. Rep. 190, 63 S. E. 852, supra, II. a; Napier Iron Works v. Caldwell & D. Iron Works (1915) 60 Ind. App. 317, 110 N. E. 714, supra, IV. b; English cases discussed in II. a.

An oral extension cannot be shown in support of a cause of action. Accordingly a vendor who has not delivered the property sold within the time specified in the writing cannot

show an oral extension of the time, in an action by him for breach of the purchaser's contract to accept and pay pay for the goods (Walter v. Victor G. Bloede Co. (1901) 94 Md. 80, 50 Atl. 433), even though he relied on the oral agreement in completing his contract (Ladd v. King (1849) 1 R. I. 224, 51 Am. Dec. 624; see supra, II. a, for facts).

Nor can a vendee who has failed to make the payments stipulated in the writing, in which event the vendor might, according to the agreement, avoid the contract and retain payments made, show an oral extension in an action against the vendor to recover damages for breach of the contract. Cook v. Bell (1869) 18 Mich. 387; Doar v. Gibbes (1831) 8 S. C. Eq. (Bail.) 371, supra.

Nor can the oral extension be shown as defensive matter. A vendor of land cannot show an oral extension of the time for conveyance in an action in damages by the vendee, who has fully performed and paid the purchase money, for failure to convey according to the written agreement. Abell v. Munson (1869) 18 Mich. 306, 100 Am. Dec. 165.

A writing which is a mere option cannot be modified by parol so as to extend the time within which it may be accepted, and thus keep it alive beyond the time fixed in the writing itself. McConathy v. Lanham (1903) 116 Ky. 735, 76 S. W. 535, holding that no action could be maintained upon an option contract for the sale of real estate, where the parties had not performed the agreement until within an extension granted by parol. Atlee v. Bartholomew (1887) 69 Wis. 43, 2 Am. St. Rep. 103, 33 N. W. 110; Adamson v. Vachon (1912) 5 Sask. L. R. 400, 8 D. L. R. 240. See Jarman v. Westbrook (1910) 134 Ga. 19, 67 S. E. 403, supra, II. a.

In Hicks v. Aylsworth (1882) 13 R. I. 562, it was held that the time for accepting an option contract for the sale of real estate could not be extended by parol. The court speaks of the parol agreement in this case being a gratuitous one.

The optionee during the time granted by

parol had made unsuccessful efforts to obtain the money necessary to accept the option.

In Lawyer v. Post (1901) 47 C. C. A. 491, 109 Fed. 512, the verbal agreement extending time included other property as well as that described in the written agreement. The holding that the verbal extension is invalid is perhaps nothing more than obiter in this case, as the court states that there was no evidence of an extension.

Accordingly, an acceptance and promise to pay the purchase price after the expiration of the time fixed in the writing, but within that fixed by the parol agreement, creates no enforceable obligation. McConathy v. Lanham (1903) 116 Ky. 735, 76 S. W. 535. The contract in this case involves the sale of a lease for a longer period than one year. The verbal acceptance by the prospective purchaser was made at a time when the lease had a longer period than one year still to run. It was therefore a con

statute to be in writing, and the parol agreement was accordingly held invalid. Atlee v. Bartholomew (Wis.) supra.

The party who accepts an option within the time fixed by an oral extension, and seeks to enforce it, is seeking to enforce a contract which is not in writing, and therefore void under the statute. Atlee v. Bartholomew (Wis.) supra.

Time may be such a substantial part of the agreement that its modification involves more than the question whether there may be a waiver by parol. In such a case it is held that a parol modification is not good. Thus, a written contract for the sale of iron, in the form of a bought-andsold note which describes the iron and specifies it to be "for shipment by sail in December, 1879, or January, 1880," cannot be modified by a parol agreement specifying a later date of shipment and delivery. v. Blake (1884) 97 N. Y. 216 (see supra, II. a, for facts); Clark v. Fey (N. Y.) supra, II. b. The court in Hill v. Blake (N. Y.) supra, states:

Hill

"I do not think it necessary to inquire whether the mere time of performance might be waived by parol, for that is not the question. The only one before us relates to a substantial matter, one affecting the identity of the thing sold, and without mention of which there could have been no contract, and which, although agreed upon, would have been invalid if not in writing."

In case of a sale of standing timber in which the title to the trees remains in the owner of the land until cut and converted into personalty, and in which the right to cut continues until a stated day, on which day the trees remaining uncut adhere in the land and lapse into the fee from the written instrument, an oral extension is invalid. Clark v. Guest (1896) 54 Ohio St. 298, 43 N. E. 862. The agreement in this case was made before the expiration of the time fixed in the writing. The court emphasizes the fact that both the title and possession of the trees in question remained in the landowner, and, this being true, his agreement to extend the time in which to take them off was an agreement for an interest in and concerning the trees still standing at the expiration of the written contract. Such verbal extension of time is stated to be clearly within the statute.

While adhering to the theory that an oral extension cannot become a part of the contract so as to bind the parties, it has been held that it may affect their rights when relied upon by one of them, and so far as relied upon, but the party granting the extension may revoke it upon proper notice. Scheerschmidt v. Smith (1898) 74 Minn. 224, 77 N. W. 34. That the extension may be revoked so far as it has not been acted upon is held also in Thomson v. Poor (N. Y.) infra, quoted with approval in Imperator Realty Co. v. Tull (1920) 228 N. Y. 447, 127 N. E. 263, supra. Thus, it has been held that a lessor who has orally agreed to extend the time for the payment of rent under the lease cannot declare a forfeiture of the lease for nonpayment at the

time stipulated in the writing, as he had a right to do under the written agreement, until the lessee had a reasonable time thereafter in which to make payment, because the failure to pay on due day was caused by the lessor's own conduct. The case states that a distinction must be kept in mind between the contract itself, which is within the purview of the statute, and the subsequent performance, which is not. The oral stipulation for an extension of the time of payment goes simply to the question of performance, constituting an excuse, as it does, for the failure to perform according to the terms of the written contract, and a reason why the lessor had no right to declare a forfeiture on account of such failure; and it is suggested that perhaps as good a ground as any upon which to put the rule is that of equitable estoppel-that he who prevents a thing being done shall not avail himself of nonperformance which he himself has occasioned. Scheerschmidt v. Smith (Minn.) supra.

Other cases do not consider it necessary to determine whether a contract within the Statute of Frauds can be altered as to the time of performance by a subsequent oral executory agreement, where one of the parties has acted upon the oral agree、 ment so that it has become executed before suit is brought for a breach. Such a situation is held to show a waiver by the plaintiff of his right to insist upon the requirements of the written contract. Thomson v. Poor (1895) 147 N. Y. 402, 42 N. E. 13, holding that an owner of land who had entered into a written contract with another to peel a specified number of cords of bark from trees on the owner's land during each of several consecutive years could not maintain an action for breach of the written contract upon a failure of the other party to peel the specified number of cords in a stated year, where the parties had orally contracted that a less number of cords be peeled during that year, and the oral agreement had been complied with. The court states that the