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tract is invalid, the acts of the party upon the oral agreement to work an inducing the other not to perform estoppel. Where it was agreed bou constitute a waiver. A vendor of tween a mortgagor and a mortgagee sheep who wrote his vendee, suggest that the mortgagor should erect a ing a change in the method of de sawmill of certain dimensions upon livery, which was agreed to by the the mortgaged premises, and that the vendee, who was thereby induced to mortgagee would then release the remain away from the place of deliv mortgage and accept as security an ery according to the written con insurance policy on the mill, and the tract, and from performing accord- mortgagee, by his conduct and exing to the written contract, will be press declarations, led the mortgagor held to have waived delivery and pay to believe that he was content with ment at the time and place named in the change made in the specifications the written contract. He cannot, of the mill, and thereby induced the therefore, declare a default on the mortgagee to erect a mill upon the part of the vendee, and refuse to re changed specifications, he is esturn an advance payment on the pur topped to refuse to discharge the chase price, nor can he recover dam mortgage because the mill does not ages for such default. Smiley v. Bark- comply with the specifications in the er (1897) 28 C. C. A. 9, 55 U. S. App. writing. Swain v. Seamens (1870) 9 125, 83 Fed. 684, certiorari denied in Wall. (U. S.) 254, 18 L. ed. 554. (1897) 169 U. S. 736, 42 L. ed. 1216, It has been stated, in a case which 18 Sup. Ct. Rep. 940. Upon failure proceeds upon the assumption that of the vendee to perform according an executory oral agreement for the to the written contract, the vendor extension of time of performance of sold the sheep to other parties and a written contract within the Statthereby disenabled himself from per ute of Frauds is invalid, that the forming.

oral stipulation can be revoked at The fact that the oral agreement any time upon giving the other party involved matters other than a mere notice of the intention to do so, and a extension of time does not affect reasonable time after such notice to this, especially where the other mat comply with its agreements as proters were contingent upon the hap vided in the written contract. Neppening of an event which did not oc pach v. Oregon & C. R. Co. (1905) 46 cur, so that nothing is claimed upon Or. 374, 80 Pac. 482, 7 Ann. Cas. this part of the agreement. Neppach 1035, involving the oral extension by v. Oregon & C. R. Co. (Or.) supra. a vendor, of time for making payIn addition to providing for the ex ment by the vendees, wherein revocatension of the time for making pay

tion of the oral extension was not ment, as is shown supra, the agree pleaded as a defense. It is stated in ment provided that, if it should final this case that a letter written by the ly be determined that the vendor had vendor to the vendees was not delivno title to the premises, the vendees ered to the vendees until the day on should make no claim for damages, which the time allowed to make the but should be entitled to a return of payment expired, and that a reasonthe money already paid, the contro able time was not allowed, after the versy over the title having been set receipt of such letter, in which to tled in favor of the vendor. The make the payment. contingency herein provided for did That the agreement may be renot occur.

voked is also the theory of Thomson But see Banister v. Fallis (1911) v. Poor (1895) 147 N. Y. 402, 42 N. 85 Kan. 320, 116 Pac. 822, infra, V. E. 14, and apparently the theory of

Some cases in which affirmative Imperator Realty Co. v. Tull (1920) action has been taken by the party 228 N. Y. 447, 127 N. E. 263. against whom the statute is invoked See Scott v. Hubbard (1913) 67 consider the necessity of such ac Or. 498, 136 Pac. 653, supra. tion having been taken in reliance After the contract has expired


there can be no oral agreement ex The object was not to make a new tending the time; there must then be contract, but merely to stipulate a new agreement, which must be in what should be a performance of the writing. v

Kingsley v. Kressly (1911) original contract, and it certainly 60 Or. 167, 111 Pac. 385, 118 Pac. cannot be contended that the parties 678, Ann. Cas. 1913E, 746.

could not agree that performance But see McDonald v. Union Hay might be made in a manner different Co. (1919) 143 Minn. 40, 172 N. W. from that originally stipulated. The 891, supra, IV. a.

party bound to convey performed his Modification after the expiration contract as soon as he complied with of the contract is not, however, con its terms or conveyed in the manner sidered in this annotation.

prescribed by the party interested. Other cases proceed upon the Performance of contracts may be theory that the execution of the oral waived either as to time, place, or modification takes it out of the Stat manner of performance." ute of Frauds. Beach V. Covillard Where the agreement is fully exe(1854) 4 Cal. 315. See supra, IV. a, cuted by both parties, it is taken out for facts. In Blake v. J. Neils Lum of the statute, as shown in IV. a, ber Co. (1910) 111 Minn. 513, 127 N. supra. W. 450, it is held that a contract for Some cases do not seem to rely the cutting and delivery of timber, upon the fact that action had been by the terms of which one of the par taken upon the oral modification. ties was to perform the work and re Worden v. Crist (1883) 106 Ill. 326, ceive a certain compensation, could where the party against whom the be modified by oral agreement by statute

invoked had assumed stipulating an additional compensa- obligations as surety on the strength tion, and when, in reliance upon the of an oral agreement. It has been new agreement, the party had fully held in

held in this jurisdiction that a performed the contract as modified, vendor who has orally agreed to ache could recover the price agreed cept a balance on the contract before upon orally. The written contract due, and make a deed for the propcovered several seasons, but the oral erty, may be compelled to perform agreements were from season to sea his agreement. Anderson v. Moore son, and the recovery was sought on (1893) 145 Ill. 61, 33 N. E. 848, the the work done for one season. This court stating that this amounts to a was held a severable contract, on waiver of the time of payment, and which the recovery might be had as is good although made by parol. above stated. In Moore v. McAllister (1857) 34

V. Extension of time. Miss. 500, a case in which a vendor, The character of alterations of who had conveyed to a third person written contracts which have been at the oral request of the vendee, adjudicated are many and varied, as was seeking to recover on bonds will be seen by reference to the foregiven for the purchase price, the going subdivisions of this note. contract is treated as fully executed. There is one alteration which has The court says:

The Statute of been before the courts frequently, Frauds "has relation alone to execu and which involves

distinct questory contracts, and can never apply tions, so that it has been deemed adto contracts which have been fully visable to make it the subject of an executed, for the reason that such independent

independent subdivision. The alcontracts as the latter can never be teration in question is that extendmade the foundation of an action ing the time for the performance of unless they should be connected with written agreements. It is the theory some collateral matter. It may be of some cases that the time for the true that this

ew arrangement could performance of a written contract not be enforced if it were merely exec within the Statute of Frauds cannot utory, but this is not the question. be modified by subsequent oral


agreement. Walter v. Victor G.

government to furnish cloth, which Bloede Co. (1901) 94 Md. 80, 50 Atl. by a special statute is required to be 433; Abell V. Munson (1869) 18 in writing, cannot be modified by an Mich. 306, 100 Am. Dec. 165; Cook v. extension of time by parol. Jones v. Bell (1869) 18 Mich. 387; Ladd v. United States (1875) 11 Ct. Cl. (Fed.) King (1849) 1 R. I, 224, 51 Am. Dec. 733. That an oral extension for a 624.

longer period than a year is within See also Com. use of Ledford v. the Statute of Frauds is the opinion Hinson (1911) 143 Ky. 428, L.R.A. expressed in Hogan V. Crawford 1917B, 139, 136 S. W. 912, Ann. Cas. (1869) 31 Tex. 634, but that case 1912D, 291, where, however, the turned upon a lack of consideration court treats the extension as a new sufficient to sustain the agreement, agreement rather than a modifica independently of the Statute of tion. It is stated obiter in Has. Frauds. And see Bullis v. Presidio brouck v. Tappen (1818) 15 Johns. Min. Co. (1889) 75 Tex. 540, 12 S. W. (N. Y.) 200, that a parol agreement 397, and Adams v. Hughes (1911) to extend the time for the perform Tex. Civ. App. 140 S. W. 1163,

, ance by the vendor of his contract to infra. The postponement of the time convey land is void under the Statute for performance of a logging conof Frauds. In Blood Goodrich tract is treated in Barton v. Gray (1832) 9 Wend. (N. Y.) 68, 24 Am. (1885) 57 Mich. 622, 24 N. W. 638, Dec. 121, the court states that the more in the nature of an independent doctrine that the time of perform- contract, and it is stated that it must ance of a written contract may be be a valid and binding agreement beenlarged by parol does not apply to tween the parties, not void under the contracts for the conveyance of land, Statute of Frauds. The jury having or to any other contract where the 'found that the oral agreement relacontract itself would not have been tive to the extension of time of pervalid if made by parol. But see

formance could not by its terms be Thomson v. Poor (1895) 147 N. Y. performed within one year from the 402, 42 N. E. 14, supra, IV. a. A writ time of the making thereof, it was ten agreement for the sale of land void under the Statute of Frauds, in which the vendor agreed to make and as a necessary consequence was the title, provided the vendee com held a mere nullity, so that it could plied with the terms of the agree

not be used for any purpose.

That ment within a stated time, cannot be the time for the payment of premiextended by parol. Doar v. Gibbes ums on a life insurance policy cannot (1831) 8 S. C. Eq. (Bail.) 371. The be changed, see Mitchell v. Universal action in this case was by the vendee L. Ins. Co. (1875) 54 Ga. 289, supra, for specific performance, and the re II. b. A written option for the purlief sought is denied, also, on the chase of land cannot be extended by ground that the court had a discre oral agreement. Adamson v. Vachon tion in such an action. A vendor (1912) 5 Sask. L. R. 040, 8 D. L. R. 240. who has sold and conveyed land un See Augusta Southern R. Co. v. der an agreement that the vendee Smith & K. Co. (1899) 106 Ga. 864, 33 should search upon the land for coal, S. E. 28, supra, IV. b; Hawkins v. and, if coal should be found by a Studdard (1909) 132 Ga. 265, 131 Am. stated date, an additional sum should St. Rep. 190, 63 S. E. 852, supra, II. a; be paid, cannot recover the addition- Napier Iron Works v. Caldwell & D. al sum where coal was not found for Iron Works (1915) 60 Ind. App. 317, a number of years after the expira 110 N. E. 714, supra, IV. b; English tion of the time fixed in the contract, cases discussed in II. a. on the strength of a parol agreement An oral extension cannot be shown to extend the time for making the in support of a cause of action. Acsearch. Heth v. Wooldridge (1828) cordingly a vendor who has not de6 Rand. (Va.) 605, 18 Am. Dec. 751. livered the property sold within the A contract with the United States time specified in the writing cannot


show an oral extension of the time, parol had made unsuccessful efforts in an action by him for breach of the to obtain the money necessary to acpurchaser's contract to accept and pay cept the option. pay for the goods (Walter v. Victor G. In Lawyer v. Post (1901) 47 C. C. Bloede Co. (1901) 94 Md. 80, 50 Atl. A. 491, 109 Fed. 512, the verbal 433), even though he relied on the agreement extending time included oral agreement in completing his other property as well as that decontract (Ladd v. King (1849) 1 R. I. scribed in the written agreement. 224, 51 Am. Dec. 624; see supra, II. The holding that the verbal extena, for facts).

sion is invalid is perhaps nothing Nor can a vendee who has failed to more than obiter in this case, as the make the payments stipulated in the court states that there was no eviwriting, in which event the vendor dence of an extension. might, according to the agreement, Accordingly, an acceptance and avoid the contract and retain pay promise to pay the purchase price

made, show an oral exte sion after the expiration of the tin fixed in an action against the vendor to re in the writing, but within that fixed cover damages for breach of the con by the parol agreement, creates no tract. Cook v. Bell (1869) 18 Mich. enforceable obligation. McConathy 387; Doar v. Gibbes (1831) 8 S. C. v. Lanham (1903) 116 Ky. 735, 76 S. Eq. (Bail.) 371, supra.

W. 535. The contract in this case inNor can the oral extension be volves the sale of a lease for a longer shown defensive matter. A period than one year. The verbal acvendor of land cannot show an oral ceptance by the prospective purchasextension of the time for conveyance er was made at a time when the lease in an action in damages by the ven had a longer period than one year dee, who has fully performed and still to run. It was therefore a conpaid the purchase money, for failure tract which was required by the to convey according to the written statute to be in writing, and the agreement. Abell v. Munson (1869) parol agreement

accordingly 18 Mich. 306, 100 Am. Dec. 165.

held invalid. Atlee v. Bartholomew A writing which is a mere option

(Wis.) supra. cannot be modified by parol so as to The party who accepts an option extend the time within which it may within the time fixed by an oral exbe accepted, and thus keep it alive tension, and seeks to enforce it, is beyond the time fixed in the writing seeking to enforce a contract which itself. McConathy v. Lanham (1903) is not in writing, and therefore void 116 Ky. 735, 76 S. W. 535, holding under the statute. Atlee v. Bartholothat no action could be maintained mew (Wis.) supra. upon an option contract for the sale Time may be such a substantial of real estate, where the parties had part of the agreement that its modifinot performed the agreement until cation involves more than the queswithin an extension granted by parol. tion whether there may be a waiver Atlee v. Bartholomew (1887) 69 Wis. by parol. In such a case it is held 43, 2 Am. St. Rep. 103, 33 N. W. 110; that a parol modification is not good. Adamson v. Vachon (1912) 5 Sask. Thus, a written contract for the sale L. R. 400, 8 D. L. R. 240. See Jar of iron, in the form of a bought-andman v. Westbrook (1910) 134 Ga. 19, sold note which describes the iron 67 S. E. 403, supra, II. a.

and specifies it to be “for shipment In Hicks V. Aylsworth (1882) 13 by sail in December, 1879, or JanuR. I. 562, it was held that the time ary, 1880,” cannot be modified by a for accepting an option contract for parol agreement specifying a later the sale of real estate could not be date of shipment and delivery. Hill extended by parol. The court speaks v. Blake (1884) 97 N. Y. 216 (see of the parol agreement in this case supra, II. a, for facts); Clark v. Fey being a gratuitous one.

(N. Y.) supra, II. b. The court in tionee during the time granted by Hill v. Blake (N. Y.) supra, states:


The op


"I do not think it necessary to in time stipulated in the writing, as he quire whether the mere time of per had a right to do under the written formance might be waived by parol, agreement, until the lessee had a for that is not the question. The only reasonable time thereafter in which one before us relates to a substantial to make payment, because the failure matter, one affecting the identity of to pay on due day was caused by the the thing sold, and without mention lessor's

conduct. The case of which there could have been no states that a distinction must be kept contract, and which, although agreed in mind between the contract itself, upon, would have been invalid if not which is within the purview of the in writing."

statute, and the subsequent performIn case of a sale of standing tim ance, which is not. The oral stipulaber in which the title to the trees re tion for an extension of the time of mains in the owner of the land until payment goes simply to the question cut and converted into personalty, of performance, constituting an exand in which the right to cut con cuse, as it does, for the failure to pertinues until a stated day, on which form according to the terms of the day the trees remaining uncut adhere written contract, and a reason why in the land and lapse into the fee the lessor had no right to declare a from the written instrument, an oral forfeiture on account of such failextension is invalid. Clark v. Guest ure; and it is suggested that perhaps (1896) 54 Ohio St. 298, 43 N. E. 862. as good a ground as any upon which The agreement in this case was made to put the rule is that of equitable before the expiration of the time estoppel--that he who prevents a fixed in the writing. The court em thing being done shall not avail himphasizes the fact that both the title self of nonperformance which he and possession of the trees in ques himself has occasioned. Scheertion remained in the landowner, and, schmidt v. Smith (Minn.) supra. this being true, his agreement to ex Other cases do not consider it nectend the time in which to take them essary to determine whether a conoff was an agreement for an interest tract within the Statute of Frauds in and concerning the trees still can be altered as to the time of perstanding at the expiration of the formance by a subsequent oral exwritten contract. Such verbal exten ecutory agreement, where one of the sion of time is stated to be clearly parties has acted upon the oral agree. within the statute.

ment so that it has become executed While adhering to the theory that before suit is brought for a breach. an oral extension cannot become a Such a situation is held to show a part of the contract so as to bind the waiver by the plaintiff of his right parties, it has been held that it may to insist upon the requirements of affect their rights when relied upon the written contract. Thomson v. by one of them, and so far as relied Poor (1895) 147 N. Y. 402, 42 N. E. upon, but the party granting the ex 13, holding that an owner of land tension may revoke it upon proper

who had entered into a written connotice. Scheerschmidt

Smith tract with another to peel a specified (1898) 74 Minn. 224, 77 N. W. 34. number of cords of bark from trees That the extension may be revoked on the owner's land during each of so far as it has not been acted upon several consecutive years could not is held also in Thomson v. Poor (N. maintain an action for breach of the Y.) infra, quoted with approval in written contract upon a failure of Imperator Realty Co. v. Tull (1920) the other party to peel the specified 228 N. Y. 447, 127 N. E. 263, supra. number of cords in a stated year, Thus, it has been held that a lessor where the parties had orally conwho has orally agreed to extend the tracted that a less number of cords time for the payment of rent under be peeled during that year, and the the lease cannot declare a forfeiture oral agreement had been complied of the lease for nonpayment at the with. The court states that the


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