effect of the oral agreement was to change the terms of the original written agreement "as to the time and manner of performance." In Daniels v. Rogers (1905) 108 App. Div. 339, 96 N. Y. Supp. 642, it was held that a vendor who had offered to deliver to the vendee a deed duly executed conveying good title in accordance with the written agreement, but who, upon the vendee's request and for his benefit, extended the time for closing for three days, might maintain an action for specific performance of the agreement.

See Neppach v. Oregon & C. R. Co. (1905) 46 Or. 374, 80 Pac. 482, 7 Ann. Cas. 1035, and Scott v. Hubbard (1913) 67 Or. 498, 136 Pac. 653; Whiting v. Doughton (1906) 31 Wash. 327, 71 Pac. 1026, supra, IV. b.

Such a situation is held to give rise to an estoppel which prevents a party from taking advantage of the failure of the other to comply with the terms of the original contract, in Hirsch Rolling Mill Co. v. Milwaukee & F. River Valley R. Co. (1917) 165 Wis. 220, 161 N. W. 741.

It has been held that if the subsequent agreement is not a mere extension, but involves other matters, it is invalid. Banister v. Fallis (1911) 85 Kan. 320, 116 Pac. 822, infra.

On the contrary, it is held that an oral extension of the time for performance of a contract within the Statute of Frauds, made before the expiration of the written contract, is valid. Baker v. Whiteside (1826) Breese (Ill.) 132, 12 Am. Dec. 168; Kissack v. Bourke (1906) 224 III. 352, 79 N. E. 619; Longfellow v. Moore (1882) 102 Ill. 289; Kingston v. Walters (1911) 16 N. M. 59, 113 Pac. 594, s. c. former appeal (1908) 14 N. M. 368, 93 Pac. 700; Stamey v. Hemple (1910) 97 C. C. A. 379, 173 Fed. 61. An oral modification of a contract for the sale of real estate with reference to the time of making payments was sustained in Delaney v. Linder (1887) 22 Neb. 274, 34 N. W. 630, but the court does not discuss the Statute of Frauds. It is stated obiter in Bullis v. Presidio Min. Co. (1889) 75 Tex. 540, 12 S. W. 397, that the time

for the performance of a contract of lease, with a privilege in the lessee to purchase the property, may be extended by a verbal agreement, but it is held in this case that the parties did not seek a mere extension of the time of performance of the first agreement, but sought a distinct and independent undertaking, which, not being signed by the lessor, was within the Statute of Frauds, and not binding upon him. But see Hogan v. Crawford (1869) 31 Tex. 634. The court in Adams v. Hughes (1911) Tex. Civ. App. 140 S. W. 1163, while treating the statement in Bullis v. Presidio Min. Co. as dictum, concludes: "We are not disposed to so regard it, however, and would hold ourselves concluded by the statement of law referred to, notwithstanding the weight of authority elsewhere." But it was held in the Adams Case that, where vendor and vendee met at the time stipulated in their contract for closing the contract, and, upon discovery that the vendor did not have a good title to the premises sold, agreed that he should not be required to make a merchantable title as provided in the written agreement, but in lieu thereof should make an effort to cure the defect in his title, but if he should not be able to do so within a reasonable time, the vendee would accept his warranty deed for the timber which was the subject of sale, this entirely changed the conditions of the contract, and absolved the vendee from the obligation to make the payments required by the written agreement, and relieved the vendor from the obligation of tendering a merchantable title by substituting therefor a warranty deed, and this, not being in writing, was not valid. See Murray v. Boyd (1915) 165 Ky. 625, 177 S. W. 468, and Heisley v. Swanstrom (1889) 40 Minn. 196, 41 N. W. 1029, supra, II. b; Moore v. MeAllister (1857) 34 Miss. 500, supra, IV. b; Alston v. Connell (1906) 140 N. C. 485, 53 S. E. 292, supra, IV. a; Smiley v. Barker (1897) 28 C. C. A. 9, 55 U. S. App. 125, 83 Fed. 684, supra, IV. b.

This rule is held to apply although

a definite agreement as to the time of the extension was not arrived at by the parties until the day after the expiration of the time limited in the contract. Bourke v. Kissack (1909) 242 III. 233, 89 N. E. 990. It appeared, however, in this case, which involved a contract for the sale of real estate, that a short time before the expiration of the time limited in the contract the purchaser talked to the vendor and reminded him that the time for the performance of the agreement was about to expire, and that he had not furnished the abstract as agreed. The vendor replied that he had not been able to find the abstract, but that he would give the purchaser time to have it examined.

was

In a case involving a sale of real estate, where the extension granted at the request of the vendee, who was suing for breach of the bond for title, the court holds that the plaintiff's conduct can be considered in no other light than as a waiver of the condition of the bond so far as it related to the time of its performance; consequently there was no breach. Baker v. Whiteside (1826) Breese (Ilt.) 132, 12 Am. Dec. 168. The Statute of Frauds, however, is not mentioned in this case.

The performance by the vendee in a contract for the sale of land, within the time agreed upon in an oral extension, was held a sufficient performance so as to entitle him to a specific performance of the contract on the theory of waiver, in Bourke v. Kissack (Ill.) supra.

Again, it is stated that the principles of estoppel will not permit one party to throw the other off his guard, and thus obtain an inequitable advantage by agreeing to extend the time of performance, and then insist upon it as written. Longfellow v. Moore (1882) 102 Ill. 289; Kingston v. Walters (1911) 16 N. M. 59, 113 Pac. 594, s. c. former appeal (1908) 14 N. M. 368, 93 Pac. 700, holding that a vendee of real estate has the extended time in which to perform.

An oral agreement between a vendor and vendee upon a contest arising with a third party over the

vendor's title to the land sold, that further payment under the contract might be suspended until the title should be determined, estops the vendor from claiming a forfeiture of contract for nonpayment of instalments falling due during a determination of the contest proceedings. Accordingly, the vendee may recover the sums paid by him previously thereto, upon the contest being decided adversely to his vendor. Missouri, K. & T. R. Co. v. Pratt (1902) 64 Kan. 118, 67 Pac. 464.

The doctrines of estoppel and waiver have been used interchangeably. In Missouri, K. & T. R. Co. v. Pratt (Kan.) supra, "the effect of the oral agreement made was not to change the binding effect of the written contract in relation to the land, but was an express waiver of the right to insist upon a default which might be made by the plaintiff in his not making payments in accordance with the terms of the contract. . . . The oral agreement made estops the company from claiming a forfeiture of the contracts for nonpayment of instalments falling due during a determination of the contest proceedings."

In Neola Elevator Co. v. Kruckman (1919) 185 Iowa, 1254, 171 N. W. 743, an action by the purchaser of corn against the seller, for damages for failure to deliver, in which the purchaser claimed that by oral agreement time for delivery was extended, the court, in sustaining a judgment for the purchaser, says: "No question of the Statute of Frauds is involved upon this appeal. An oral agreement extending the time for the delivery of the corn did not otherwise modify or alter the written contract, and in no way interfered with the enforcement of the terms thereof." Reliance is placed upon the earlier case of Brown v. Sharkey (1894) 93 Iowa, 157, 61 N. W. 364, where in an action for damages for the nondelivery of oats, the court says that it was competent for the parties to extend by oral agreement the time for the delivery as fixed in the contract. In the earlier case

nothing is said as to the Statute of Frauds.

If the subsequent oral agreement is not a mere extension, but involves other matters, such as that the title of land which is the subject of the contract shall be perfected, it has been held that the oral modification is invalid. In Banister v. Fallis (1911) 85 Kan. 320, 116 Pac. 822, the parties to a written agreement for an exchange of land, upon discovery of what they conceived to be a defect in the title of one of them, orally agreed that the papers should be delivered in escrow until the title was perfected. The parties, however, delivered possession of the respective tracts according to the agreement, and subsequently the deeds. were taken from the custodian, without the knowledge of the plaintiff in the action, and recorded. The plaintiff then brought suit for the cancelation of the deed which he had executed, to quiet his title to the land which such deed purported to convey, and for damages for the expense he had incurred in the removal of his improvements. Upon the trial he offered to show the parol agreement, and contended that, until the title of the defendant was cured as agreed thereby, all papers were to be retained by the custodian without delivery. This offer was rejected, and in sustaining the rejection the supreme court says that the parol agreement not only extended the time for the performance of the contract, but introduced a new condition, which not only became essential to any conveyance at all, but which was regarded, and is still regarded by the plaintiff, as indispensable to the vesting of title in him.

It has been held that time for the performance by a real-estate broker of his written agency contract, which contains a limitation as to time, may be extended by parol, on the theory that time is not required to be stated in the writing. Hetzel V. Lyon (1910) 87 Neb. 261, 126 N. W. 997. See supra, II. b.

It has been held that an extension of the time for the making of the

Under the Massachusetts theory discussed in subd. III. supra, it is held that the time may be extended. It has been held where there is an option, in a contract having a certain time to run, to extend the contract for a further period, that the option may be exercised by any definite notice given before the expiration of the first period, and that the Statute of Frauds has no application in such a case. Byrne Mill Co. v. Robertson (1907) 149 Ala. 273, 42 So. 1008.

A statute has been enacted in some states, expressly providing that a contract in writing may be altered by "an executed oral agreement." It has been claimed, where there has been an oral extension of time for the performance of a contract, and the thing which, by the terms of the writing, was to be done, is done within the period provided by the oral extension, that this constitutes an executed oral agreement within the meaning of the statute; but this is denied. Platt v. Butcher (1896) 112 Cal. 634, 44 Pac. 1060. It was accordingly held in this case, under a statute requiring the employment of a real-estate broker to be in writing, that the broker could not recover for his services where he had found a purchaser within an extension fixed by parol agreement. The California statute is again referred to in Walker v. Harbor Business Block Co. (1919) 181 Cal. 773, 186 Pac. 356, and in Cross v. Ramdullah (1921) 274 Fed. 762, discussed in subd. I. supra.

It is stated that an oral agreement simply extending time cannot be executed, for there is nothing to execute. No affirmative action is required. Such an agreement calls for nothing to be done, and expires by

mere lapse of time. It is further stated that an oral agreement does not alter a contract in writing until it becomes an executed oral agreement. But where one of the parties has relied upon the extension of time, allowing the original time to pass without performing his agreement, the other party has been held estopped to demand a strict performance. A vendor who has, at the request of the vendee, extended the time within which the vendee may remove a building which is a part of the consideration for the contract, is estopped to insist upon a strict performance of the contract as written, in an action by the vendee to compel specific performance. Spencer V. McCament (1907) 7 Cal. App. 84, 93 Pac. 682.

time fixed in the agreement, brought an action in damages, and in his petition alleged that by oral agreement the time for the payment of the purchase price had been extended, and that within the time extended he had tendered the purchase price. The defendant moved for judgment on the pleadings, taking the position that the oral agreement extending the time of payment was invalid under the Statute of Frauds, on the theory that the written contract was a mere option. The court held that the written instrument was a contract to convey land, and not an option, and that therefore the defendant's motion for judgment on the pleadings was properly overruled; but this decision, according to a citation. from Davis v. Martin (1907) 146 N. C. 281, 59 S. E. 700, is upon the ground that time is not of the essence of a contract to convey land. Apparently the decision would have been the same if there had been no oral agreement involved. W. A. E.

The Constitution contains no limitation upon the consideration of bene

fits as just compensation for land taken under the power of eminent domain, except when exercised through the instrumentality of a corporation. Cribbs v. Benedict, 64 Ark. 559, 44

S. W. 707; Dickerson v. Tri-County Drainage Dist. 138 Ark. 471, 212 S. W. 334; Ritter v. Drainage Dist. 78 Ark. 580, 94 S. W. 711; Barton v. Edwards, 120 Ark. 239, 179 S. W. 354; Paragould v. Milner, 114 Ark. 334, 170 S. W. 78. Messrs. George A. Hillhouse and Brundidge & Neelly for appellees.

McCulloch, Ch. J., delivered the opinion of the court:

The Newport levee district was created as an improvement district by the legislature (Acts 1917, p. 1285), for the purpose of constructing a levee along the bank of White river, through the city of Newport and contiguous territory. The right of eminent domain was conferred for the purpose of acquiring lands to be used in the construction of the levee. The cost of the improvement included, of course, all costs of acquiring rights of way and other expenses to be paid for by assessments on benefits accruing to the real property affected by the improvement. Appellees are the owners of a tract of land containing approximately 17 acres situated just outside of the city of Newport and fronting on White river, and in the construction of the levee the district took and used about 5 acres of said land of appellees, all of which land so taken fronted on White river. The remainder of the land of appellees is within the bounds of the district, and the benefits thereto from the construction of the levee have, of course, been assessed and will be taxed proportionately for the construction of the improvement. It is not shown in the present record how the district acquired the right of way over the land of appellees, and, as no point is made in this case on that proposition, we assume that the lands were taken without the exercise of the right of eminent domain in the manner prescribed by the statute.

Appellees instituted this action against the district to recover damages laid in the aggregate sum of $3,500, and specified as being the sum of $3,000, the value of 5 acres taken and used by the district, and the further sum of $500 for dam

ages to the remainder of the land. Appellants (said district and its commissioners), in addition to denials of the allegations of the complaint with respect to the extent of the injury and amount of damages recoverable, pleaded that "the benefits received by said land, local and peculiar to the same, over and above the benefit which said tract receives in common with the other lands in Newport levee district, greatly exceed the value of the land taken by said district for the right of way of its levee over the lands of the plaintiffs."

The cause was tried before a jury on conflicting testimony in regard to the value of the land taken and the land not taken, and the jury reinjury or benefit to the remaining turned a verdict in favor of appellees, fixing the damages at the aggregate sum of $1,500, without items of damages charged in the apportioning the same between the complaint.

The court, in one of its instructions, told the jury, over the objections of appellants, that in ascertaining the amount of damages for taking the land the jury "should not take into consideration any benefits which may accrue by the building of the levee to the remainder of the original tract." An exception was saved to this ruling of the court, and the only question presented on this appeal is whether or not the court erred in holding that appellees' right of recovery for the value of the lands taken and used by the district in the construction of the levee could not be reduced by the benefits accruing to the remainder of the tract.

The only provision in the Constitution of this state in which it is attempted to regulate or restrict the right of eminent domain for public purposes is in § 22, art. 2, of the Constitution of 1874, which declares that "private property shall not be taken, appropriated, or damaged for public use, without just compensation therefor."

The inquiry which, therefore,