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effect of the oral agreement was to for the performance of a contract of change the terms of the original lease, with a privilege in the lessee written agreement “as to the time to purchase the property, may be exand manner of performance." In tended by a verbal agreement, but it Daniels v. Rogers (1905) 108 App. is held in this case that the parties Div. 339, 96 N. Y. Supp. 642, it was did not seek a mere extension of the held that a vendor who had offered to time of performance of the first deliver to the vendee a deed duly ex agreement, but sought a distinct and ecuted conveying good title in ac independent undertaking, which, not cordance with the written agreement, being signed by the lessor, was withbut who, upon the vendee's request in the Statute of Frauds, and not and for his benefit, extended the time binding upon him. But see Hogan v. for closing for three days, might Crawford (1869) 31 Tex. 634. The maintain an action for specific per

court in Adams v. Hughes (1911) formance of the agreement.

Tex. Civ. App. 140 S. W. 1163, See Neppach v. Oregon & C. R. Co. while treating the statement in (1905) 46 Or. 374, 80 Pac. 482, 7 Ann. Bullis v. Presidio Min. Co. as dictum, Cas. 1035, and Scott v. Hubbard concludes: “We are not disposed to (1913) 67 Or. 498, 136 Pac. 653; Whit so regard it, however, and would hold ing v. Doughton (1906) 31 Wash. 327, ourselves concluded by the state71 Pag. 1026, supra, IV. b.

ment of law referred to, notwithSuch a situation is held to give standing the weight of authority rise to an estoppel which prevents a elsewhere." But it was held in the party from taking advantage of the Adams Case that, where vendor and failure of the other to comply with vendee met at the time stipulated in the terms of the original contract, in their contract for closing the conHirsch Rolling Mill Co. v. Milwaukee tract, and, upon discovery that the & F. River Valley R. Co. (1917) 165 vendor did not have a good title to Wis. 220, 161 N. W. 741.

the premises sold, agreed that he It has been held that if the subse should not be required to make a quent agreement is not a mere exten merchantable title as provided in the sion, but involves other matters, it is written agreement, but in lieu thereinvalid. Banister v. Fallis (1911) 85 of should make an effort to cure the Kan. 320, 116 Pac. 822, infra.

defect in his title, but if he should On the contrary, it is held that an not be able to do so within a reasonoral extension of the time for per able time, the vendee would accept formance of a contract within the his warranty deed for the timber Statute of Frauds, made before the which was the subject of sale, this expiration of the written contract, is entirely changed the conditions of valid. Baker v. Whiteside (1826) the contract, and absolved the vendee Breese (Ill.) 132, 12 Am. Dec. 168; from the obligation to make the payKissack v. Bourke (1906) 224 Ill. 352, ments required by the written agree79 N. E. 619; Longfellow v. Moore ment, and relieved the vendor from (1882) 102 Ill. 289; Kingston v. Wal the obligation of tendering a merters (1911) 16 N. M. 59, 113 Pac. 594, chantable title by substituting theres. c. former appeal (1908) 14 N. M. for a warranty deed, and this, not 368, 93 Pac. 700; Stamey v. Hemple being in writing, was not valid. See (1910) 97 C. C. A. 379, 173 Fed. 61. Murray v. Boyd (1915) 165 ky. 625, An oral modification of a contract 177 S. W. 468, and Heisley v. Swanfor the sale of real estate with refer strom (1889) 40 Minn. 196, 41 N. W. ence to the time of making payments 1029, supra, II. b; Moore v. MeAlliswas sustained in Delaney v. Linder ter (1857) 34 Miss. 500, supra, IV. b; (1887) 22 Neb. 274, 34 N. W. 630, but Alston v. Connell (1906) 140 N. C. the court does not discuss the Stat 485, 53 S. E. 292, supra, IV. a; Smiley ute of Frauds. It is stated obiter in v. Barker (1897) 28 C. C. A. 9, 55 U. Bullis v. Presidio Min. Co. (1889) 75 S. App. 125, 83 Fed. 684, supra, IV. b. Tex. 540, 12 S. W. 397, that the time This rule is held to apply although

a definite agreement as to the time of vendor's title to the land sold, that the extension was not arrived at by further payment under the contract the parties until the day after the ex might be suspended until the title piration of the time limited in the should be determined, estops the contract. Bourke v. Kissack (1909) vendor from claiming a forfeiture of 242 III. 233, 89 N. E. 990. It ap contract for nonpayment of instalpeared, however, in this case, which ments falling due during a determinainvolved a contract for the sale of tion of the contest proceedings. Acreal estate, that a short time before cordingly, the vendee may recover the the expiration of the time limited in sums paid by him previously thereto, the contract the purchaser talked to upon the contest being decided adthe vendor and reminded him that versely to his vendor. Missouri, K. & the time for the performance of the T. R. Co. v. Pratt (1902) 64 Kan. 118, agreement was about to expire, and 67 Pac. 464. that he had not furnished the ab The doctrines of estoppel and stract as agreed. The vendor replied waiver have been used interchangethat he had not been able to find the ably. In Missouri, K. & T. R. Co. v. abstract, but that he would give the Pratt (Kan.) supra, “the effect of the purchaser time to have it examined. oral agreement made was not to

In a case involving a sale of real change the binding effect of the writestate, where the extension was ten contract in relation to the land, granted at the request of the vendee, but was an express waiver of the who was suing for breach of the bond right to insist upon a default which for title, the court holds that the might be made by the plaintiff in his plaintiff's conduct can be considered not making payments in accordance in no other light than as a waiver of with the terms of the contract. the condition of the bond so far as it The oral agreement made estops the related to the time of its performance; company from claiming a forfeiture consequently there was no breach. of the contracts for nonpayment of Baker v. Whiteside (1826) Breese instalments falling due during a de(III.) 132, 12 Am. Dec. 168. The termination of the contest proceedStatute of Frauds, however, is not ings." mentioned in this case.

In Neola Elevator Co. v. Kruckman The performance by the vendee in (1919) 185 Iowa, 1254, 171 N. W. 743, a contract for the sale of land, with an action by the purchaser of corn in the time agreed upon in an oral ex against the seller, for damages for tension, was held a sufficient per failure to deliver, in which the purformance so as to entitle him to a chaser claimed that by oral agreespecific performance of the contract ment time for delivery was extended, on the theory of waiver, in Bourke v. the court, in sustaining a judgment Kissack (Ill.) supra.

for the purchaser, says: “No quesAgain, it is stated that the princi tion of the Statute of Frauds is inples of estoppel will not permit one volved upon this appeal. An oral party to throw the other off his agreement extending the time for the guard, and thus obtain an inequitable delivery of the corn did not otheradvantage by agreeing to extend the wise modify or alter the written contime of performance, and then insist tract, and in no way interfered with upon it as written. Longfellow v. the enforcement of the terms thereMoore (1882) 102 Ill. 289; Kingston of." Reliance is placed upon the v. Walters (1911) 16 N. M. 59, 113 earlier case of Brown v. Sharkey Pac. 594, s. c. former appeal (1908) (1894) 93 Iowa, 157, 61 N. W. 364, 14 N. M. 368, 93 Pac. 700, holding where in an action for damages for that a vendee of real estate has the the nondelivery of oats, the court extended time in which to perform. says that it was competent for the

An oral agreement between parties to extend by oral agreement vendor and vendee upon a contest the time for the delivery as fixed in arising with a third party over the the contract. In the earlier






nothing is said as to the Statute of cash payment fixed in a written conFrauds.

tract for the sale of a business, If the subsequent oral agreement which included the assignment of a is not a mere extension, but involves lease of the property on which the other matters, such as that the title business

conducted, may be of land which is the subject of the made by parol, since the designation contract shall be perfected, it has of a definite period of time for per. been held that the oral modification formance is not a feature essential to is invalid. In Banister Fallis the validity of the contract. Lewis (1911) 85 Kan. 320, 116 Pac. 822, the Bros. v. Pendleton (1921) Tex. parties to a written agreement for an Civ. App. -, 227 S. W. 502. exchange of land, upon discovery of Under the Massachusetts theory what they conceived to be a defect in discussed in subd. III. supra, it is the title of one of them, orally agreed held that the time may be extended. that the papers should be delivered It has been held where there is an in escrow until the title was per option, in a contract having a certain fected. The parties, however, deliv time to run, to extend the contract ered possession of the respective for a further period, that the option tracts according to the agreement, may be exercised by any definite noand subsequently the deeds

tice given before the expiration of taken from the custodian, without the the first period, and that the Statute knowledge of the plaintiff in the ac of Frauds has no application in such tion, and recorded. The plaintiff a case. Byrne Mill Co. v. Robertson then brought suit for the cancelation (1907) 149 Ala. 273, 42 So. 1008. of the deed which he had executed, to A statute has been enacted in some quiet his title to the land which such states, expressly providing that a deed purported to convey, and for contract in writing may be altered by damages for the expense he had in "an executed oral agreement." It curred in the removal of his improve has been claimed, where there has ments. Upon the trial he offered to been an oral extension of time for show the parol agreement, and con the performance of a contract, and tended that, until the title of the the thing which, by the terms of the defendant was cured as agreed there- writing, was to be done, is done withby, all papers were to be retained by in the period provided by the oral exthe custodian without delivery. This tension, that this constitutes an exoffer was rejected, and in sustaining ecuted oral agreement within the the rejection the supreme court says meaning of the statute; but this is that the parol agreement not only denied. Platt v. Butcher (1896) 112 extended the time for the perform Cal. 634, 44 Pac. 1060. It was acance of the contract, but introduced cordingly held in this case, under a a new condition, which not only be statute requiring the employment of came essential to any conveyance at a real-estate broker to be in writing, all, but which was regarded, and is that the broker could not recover for still regarded by the plaintiff, as in his services where he had found a dispensable to the vesting of title in purchaser within an extension fixed him.

by parol agreement. The California It has been held that time for the statute is again referred to in Walker performance by a real-estate broker v. Harbor Business Block Co. (1919) of his written agency contract, which 181 Cal. 773, 186 Pac. 356, and in contains a limitation as to time, may Cross v. Ramdullah (1921) 274 Fed. be extended by parol, on the theory 762, discussed in subd. I. supra. that time is not required to be stated It is stated that an oral agreement in the writing. Hetzel Lyon simply extending time cannot be ex(1910) 87 Neb. 261, 126 N. W. 997. ecuted, for there is nothing to exeSee supra, II. b.

cute. No affirmative action is reIt has been held that an extension quired. Such an agreement calls for of the time for the making of the nothing to be done, and expires by


mere lapse of time. It is further time fixed in the agreement, brought stated that an oral agreement does an action in damages, and in his penot alter a contract in writing until tition alleged that by oral agreement it becomes an executed oral agree the time for the payment of the purment. But where one of the parties chase price had been extended, and has relied upon the extension of time, that within the time extended he had allowing the original time to pass tendered the purchase price. The dewithout performing his agreement, fendant moved for judgment on the the other party has been held es pleadings, taking the position that topped to demand a strict perform the oral agreement extending the ance. A vendor who has, at the re time of payment was invalid under quest of the vendee, extended the the Statute of Frauds, on the theory time within which the vendee may that the written contract was a mere remove a building which is a part of option. The court held that the the consideration for the contract, is written instrument was a contract estopped to insist upon a strict per to convey land, and not an option, formance of the contract as written, and that therefore the defendant's in an action by the vendee to compel motion for judgment on the pleadspecific performance. Spencer v. ings was properly overruled; but McCament (1907) 7 Cal. App. 84, 93 this decision, according to a citation Pac. 682.

from Davis v. Martin (1907) 146 N. In connection with the extension C. 281, 59 S. E. 700, is upon the of time, cases like Howell v. Pate ground that time is not of the es(1921) — N. C. —, 106 S. E. 454, must sênce of a contract to convey land. be considered.

In that case a pur Apparently the decision would have chaser of real estate, who had failed been the same if there had been no to tender the purchase price at the oral agreement involved. W. A. E.

T. J. GREGG et al., Directors of Newport Levee District, Appts.,

H. C. SANDERS et al.

[blocks in formation]

Eminent domain setting off benefits against compensation for property

taken. Benefits to remaining land cannot be set off against the compensation to be awarded for property taken by a drainage district which is to be paid for by assessments on property benefited.

(See note on this question beginning on page 64.]

· APPEAL by defendants from a judgment of the Chancery Court for Pike County (Shaver, Ch.) in favor of plaintiffs in an action brought to recover the value of land taken by defendants for the construction of a levee and for damages to the remainder of the land. Affirmed.

The facts are stated in the opinion of the court. Messrs. C. M, Erwin, John W. Stay fits as just compensation for land takton, and Joseph M. Stayton, for appel en under the power of eminent dolants:

main, except when exercised through The Constitution contains no limi the instrumentality of a corporation. tation upon the consideration of bene Cribbs v. Benedict, 64 Ark. 559, 44

S. W. 707; Dickerson v. Tri-County ages to the remainder of the land. Drainage Dist. 138 Ark. 471, 212 S. W. Appellants (said district and its 334; Ritter v. Drainage Dist. 78 Ark. commissioners), in addition to de580, 94 S. W. 711; Barton v. Edwards,

nials of the allegations of the com120' Ark. 239, 179 $. W. 354; Paragould plaint with respect to the extent of v. Milner, 114 Ark. 334, 170 S. W. 78. Messrs. George A. Hillhouse and

the injury and amount of damages Brundidge & Neelly for appellees.

recoverable, pleaded that “the benMcCulloch, Ch. J., delivered the peculiar to the same, over and above

efits received by said land, local and opinion of the court:

the benefit which said tract receives The Newport levee district was

in common with the other lands in created as an improvement district by the legislature (Acts 1917, p.

Newport levee district, greatly ex

ceed the value of the land taken by 1285), for the purpose of construct

said district for the right of way of ing a levee along the bank of White

its levee over the lands of the plainriver, through the city of Newport tiffs.” and contiguous territory. The right

The cause was tried before a jury of eminent domain was conferred

on conflicting testimony in regard to for the purpose of acquiring lands

the value of the land taken and the to be used in the construction of the injury or benefit to the remaining levee. The cost of the improvement land not taken, and the jury reincluded, of course, all costs of ac

turned a verdict in favor of apquiring rights of way and other ex

pellees, fixing the damages at the penses to be paid for by assessments on benefits accruing to the real

aggregate sum of $1,500, without property affected by the improve

apportioning the same between the

items of damages charged in the ment. Appellees are the owners of a tract of land containing approx


The court, in one of its instrucimately 17 acres situated just out

tions, told the jury, over the objecside of the city of Newport and

tions of appellants, that in ascerfronting on White river, and in the

taining the amount of damages for construction of the levee the district taking the land the jury “should not took and used about 5 acres of said

take into consideration any benefits land of appellees, all of which land

which may accrue by the building of so taken fronted on White river. The remainder of the land of appel

the levee to the remainder of the

original tract.” An exception was lees is within the bounds of the dis

saved to this ruling of the court, and trict, and the benefits thereto from the construction of the levee have, appeal is whether or not the court

the only question presented on this of course, been assessed and will be

erred in holding that appellees' taxed proportionately for the con

right of recovery for the value of struction of the improvement. It is not shown in the present record how

the lands taken and used by the dis

trict in the construction of the levee the district acquired the right of way over the land of appellees, and,

could not be reduced by the benefits as no point is made in this case on

accruing to the remainder of the

tract. that proposition, we assume that the lands were taken without the exer

The only provision in the Consticise of the right of eminent domain

tution of this state in which it is atin the manner prescribed by the tempted to regulate or restrict the statute.

right of eminent domain for public Appellees instituted this action purposes is in $ 22, art. 2, of the against the district to recover dam

Constitution of 1874, which deages laid in the aggregate sum of clares that “private property shall $3,500, and specified as being the not be taken, appropriated, or damsum of $3,000, the value of 5 acres aged for public use, without just taken and used by the district, and compensation therefor.” the further sum of $500 for dam The inquiry which, therefore,

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