Obrázky stránek
PDF
ePub

tendered conveyance of the lots to the broker. The latter accepted the money, but refused the lots, and sued for the balance of his commissions under the original contract, claiming, as does the plaintiff in the instant case, that the oral modification as to his commissions was invalid with respect to a contract within the Statute of Frauds. The court held the oral modification binding, because the broker "not only induced the appellants to pay it the sum of $200, but it induced the appellant to enter into an exchange of properties which it would not have entered into had the modified agreement not been made." In that case the decision was based partly upon the fact that the exchange of properties had been effected, and part of the commission paid and accepted, and the remainder tendered under the contract as modified, and partly upon the rule that the broker was estopped by his conduct; but the existence of the latter rule was recognized.

It has been held in some cases that the subsequent oral modification of a contract required by the statute to be in writing is invalid unless it appears that the parties afterwards executed and performed the contract as modified. In such cases they would have estopped themselves from questioning the modification by their subsequent conduct in acquiescing in and accepting the contract as modified, evidenced by their performance of it. Such was the holding of this court with reference to the oral modification of the rental stipulated in a written lease, whereby a decreased rental was paid and accepted. Bowman v. Wright, 65 Neb. 661, 91 N. W. 580, 92 N. W. 580.

In the instant case, however, the contract as orally modified does not, under the defendant's pleading and offered proof, rest upon estoppel arising from the subsequent acquiescence of the parties in it, but upon estoppel arising from the precedent conduct of one of the parties in inducing the other to change his

[blocks in formation]

cording to this theory, the defendant was acting upon the commission contract as orally modified, when he signed the contract with Baker; under the plaintiff's theory, on the contrary, in signing that contract, the defendant was acting upon the original unmodified commission contract. The making of the contract with Baker was not, therefore, an act so distinctly referable to the modified commission contract as clearly to mark it as an act in performance of that contract, as distinguished from an act in performance of the original contract. Thus the alleged oral modification cannot be held valid on the theory of subsequent performance, unequivocally recognizing and executing the contract as modified, but only, if at all, upon the theory of estoppel arising from the precedent conduct of the plaintiff.

There is no reason, in our opinion, why a party to a contract within the Statute of Frauds may not be estopped by his conduct from disputing a subsequent oral modification of it, to the same extent as a party to any other contract. It is a principle of equity, superior to any technical or artificial legal rules, which takes effect whenever the assertion of such a rule would result in perpetrating or ratifying a fraud. We therefore conclude

Evidence-of

contract.

that the defendant oral modificawas entitled to in- tion of broker's troduce evidence in support of the averments of his answer, and that there was in his pleading as well as in the preliminary questions propounded to his witnesses, a sufficient foundation for his offered proof.

Another contention of the defendant is that the contract with Baker was so ambiguous with regard to the value at which the land in Perkins county was to be taken in the transaction, as to indicate a mutual mistake which would render that contract unenforceable. The defendant covenanted to take this land at $3,350 and to assume a mortgage

[blocks in formation]

181 N. W. 135.)

adopted by and made the opinion of the court.

Petition for rehearing denied.

NOTE.

The decision in HECHT V. MARSH (reported herewith) ante, 1, is an illustration of the reluctance generally shown by the courts to allow the Statute of Frauds to invalidate an oral modification of a written contract within the Statute of Frauds, which has been performed. In this decision the court makes clear the principle that an executory oral modification is ineffectual, but it is there held that, where in reliance upon the oral agreement a party has performed or changed his position to his disadvantage, the rights and liabilities of the parties will be determined by the modified agreement. The general question of the effect of the Statute of Frauds upon the right to modify, by subsequent parol agreement, a written contract required by the statute to be in writing, is discussed in the annotation to SCHAAP v. WOLF, post, 10.

[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors]

1. A provision in a written contract for sale of standing timber, giving a right of removal during a coming winter provided grantor still owned the land, cannot be modified by parol so as to provide for removal at that time regardless of who then owned the property.

[See note on this question beginning on page 10.]

[merged small][ocr errors][merged small][merged small][merged small]

APPEAL by defendants from a judgment of the Circuit Court for Sheboygan County (Kirwan, J.) in favor of plaintiff in an action brought to

recover damages for refusal of defendants to permit him to enter certain lands and cut the standing timber thereon. Reversed.

Statement by Vinje, J.:

Action to recover damages for refusal to permit plaintiff to enter certain lands and cut the standing timber thereon. December 18, 1916, the defendant Wolf owned the land, and entered into a written unrecorded contract with the plaintiff, permitting him to enter and cut all the standing timber thereon, all the timber to be removed before May 1, 1917. It further provided: "If Mr. Wolf still owns the farm next winter, Mr. Schaap may have the privilege of removing timber at that time."

On May 29, 1917, Wolf conveyed the land to the defendant Heise, and on August 29, 1917, he conveyed it to the defendant Lindow.

The jury found: (1) That on April 2, 1917, Wolf without consideration orally agreed to allow plaintiff to cut and remove, during the winter of 1917-1918, the balance of the timber then uncut; (2) that before Wolf conveyed to Heise he informed him of the written agreement, but not of the oral one; (3) that they did not mutually agree that Heise should permit plaintiff to cut and remove the timber in the winter of 1917-1918; (4) that at the time of said conveyance it was not orally agreed between Heise and Wolf that it was made subject to the condition that plaintiff should have the right to cut and remove the timber in the winter of 1917-1918; (5) that Lindow, at and before the time he bought from Heise, had notice that Wolf had sold plaintiff all the timber; had notice of the written agreement, and also of the oral agreement of April 2, 1917; (6) that plaintiff ceased cutting in the spring of 1917, relying upon the extension of time granted in the oral agreement; and (7) damages $225. The court dismissed the action as to the defendant Heise, and entered judgment against the defendants Wolf and Lindow for the damages found, with interest and costs, from which judgment they appealed.

Mr. M. C. Mead, for appellant Wolf: The sale of standing timber is a sale of an interest in real estate.

Daniels v. Bailey, 43 Wis. 566. Plaintiff should have brought an action in equity to establish his title to this standing timber.

Peshtigo Lumber Co. v. Ellis, 122 Wis. 433, 100 N. W. 834.

Defendant Wolf is entitled to judgment in his favor upon the special verdict dismissing the plaintiff's action as against himself.

30 Cyc. p. 129; Lull v. Fox & W. Improv. Co. 19 Wis. 101; Greene v. Nunnemacher, 36 Wis. 50; Draper v. Brown, 115 Wis. 361, 91 N. W. 1001; Dicey, Parties to Actions, 429.

Messrs. George L. Mooney and Bowler & Bowler, for appellant Lindow:

A purchaser may not only enjoy the property free from any adverse claims of which he had no notice at the time of his purchase, but he may also transfer his right in this respect to others, and the fact that his alienee has notice is immaterial; it being thus the rule that a purchaser with notice from a purchaser without notice has all the rights of the latter.

16 Am. & Eng. Enc. Law, 841; Simon v. Kaliske, 1 Sweeny, 304; Varick v. Briggs, 6 Paige, 323; East v. Pugh, 71 Iowa, 162, 32 N. W. 309.

The oral extension or modification of the written agreement made and executed on December 18th, 1916, between the plaintiff and defendant Wolf, is void, and confers no rights on the plaintiff.

17 Am. & Eng. Enc. Law, 448, § 454; Hanson v. Gunderson, 95 Wis. 613, 70 N. W. 827; Foley v. Marsch, 162 Wis. 25, 154 N. W. 982; Welsh v. Gossler, 89 N. Y. 540.

The written agreement was not executed under seal and hence conveyed no legal title to the standing timber, because it is a part of the real estate; but only served to create an equitable right in the timber which a court of equity would protect and enforce in a proper case.

Peshtigo Lumber Co. v. Ellis, 122 Wis. 433, 100 N. W. 834; Bruley v. Garvin, 105 Wis. 625, 48 L.R.A. 839, 81 N. W. 1038; Marsh v. Bellew, 45 Wis. 36; Lillie v. Dunbar, 62 Wis. 198, 22 N. W. 467; Price & B. Co. v. Madison, 17 S. D. 247, 95 N. W. 933; Emerson

(Wis. - 181 N. W. 214.)

v. Shores, 95 Me. 237, 85 Am. St. Rep. 404, 49 Atl. 1051.

If the plaintiff had any rights against the defendants, his relief could be obtained only in a court of equity, and not in an action at law.

Peshtigo Lumber Co. v. Ellis, 122 Wis. 433, 100 N. W. 834; Jilek v. Zahl, 162 Wis. 157, 155 N. W. 909.

Mr. H. J. Rooney, for respondent: A verbal extension of the time of performance of a written agreement, made by the parties and relied upon by the plaintiff, is a valid extension, and "defendant is estopped from taking advantage of the failure of the plaintiff to comply with the terms of the original contract."

Hirsch Rolling Mill Co. v. Milwaukee & F. River Valley R. Co. 165 Wis. 220, 161 N. W. 747; Lawton v. Racine, 137 Wis. 593, 119 N. W. 331; Thomson v. Poor, 147 N. Y. 402, 42 N. E. 13; Scheerschmidt v. Smith, 74 Minn. 224, 77 N. W. 34; Newberry v. Chicago Lumbering Co. 154 Mich. 84, 117 N. W. 592; McDowell v. McDowell, 141 Iowa, 286, 31 L.R.A. (N.S.) 176, 133 Am. St. Rep. 170, 119 N. W. 702; 20 Cyc. 287; Pom. Eq. Jur. § 803; 16 Cyc. 726.

Defendant Lindow was not a purchaser in good faith.

Mueller v. Brigham, 53 Wis. 173, 10 N. W. 366; Brinkman v. Jones, 44 Wis. 498; Helms v. Chadborne, 45 Wis. 60; Stewart v. McSweeney, 14 Wis. 468; Quinlan v. Pierce, 34 Wis. 304; Bergeron v. Richardott, 55 Wis. 129, 12 N. W. 384; First Nat. Bank v. Chafee, 98 Wis. 42, 73 N. W. 318; Coe v. Manseau, 62 Wis. 81, 22 N. W. 155; Herren v. Strong, 62 Wis. 223, 22 N. W. 408; Martin v. Morris, 62 Wis. 418, 22 N. W. 525; Meade v. Gilfoyle, 64 Wis. 18, 24 N. W. 413; Wickes v. Lake, 25 Wis. 71. Plaintiff had an adequate remedy at law against defendants.

Micek v. Wamka, 165 Wis. 97, 161 N. W. 367; Sullivan v. Ashland Light, Power & Street R. Co. 156 Wis. 445, 146 N. W. 506; Peters v. Chicago & N. W. R. Co. 165 Wis. 529, 162 N. W. 916; Hommel v. Badger State Invest. Co. 166 Wis. 235, 165 N. W. 20; Scheerschmidt v. Smith, 74 Minn. 224, 77 N. W. 34; Knauf & T. Co. v. Elkhart Lake Sand & Gravel Co. 153 Wis. 306, 48 L.R.A. (N.S.) 744, 141 N. W. 701; Swihart v. Harless, 93 Wis. 211, 67 N. W. 413; Douglas County v. Walbridge, 38 Wis. 179; Zeller v. Martin, 84 Wis. 5, 54 N. W. 330.

Vinje, J., delivered the opinion of the court:

The defendant Wolf contends that since the oral agreement of April 2, 1917, relates to an interest in land, -standing timber,-it is void under the Statute of Frauds. Section 2302, Stat. 1919. The defendant Lindow makes the same defense, and further claims that, since his grantor, Heise, was a bona fide purchaser for value and without notice of the oral extension of time for the removal of the timber, he took as good a title as Heise had, and is therefore not liable-citing Tiffany, Real Property, 1095; Simon v. Kalski, 1 Sweeny, 304, and East v. Pugh, 71 Iowa, 162, 32 N. W. 309. If the first of these respective claims is sustained, it disposes of the case in favor of the appellants, and alleged errors in procedure need not be discussed.

That a contract for the sale of standing timber relates to an interest in land, and comes within the Statute of Frauds,

Contract-sale of

is well settled in this standing timber state (Daniels

V.

-Statute of Frauds.

Bailey, 43 Wis. 566; Seymour v. Cushway, 100 Wis. 590, 69 Am. St. Rep. 957, 76 N. W. 769, and cases cited; Huntington v. Burdeau, 149 Wis. 268, 135 N. W. 845, and cases cited), and is not contested by plaintiff. But he contends that, though the contract is within the Statute of Frauds, the oral agreement of April 2 was but an extension of time of performance, and under the rule in Hirsch Rolling Mill Co. v. Milwaukee & F. River Valley R. Co. 165 Wis. 220, 161 N. W. 741, the defendants are estopped from setting up the statute as a defense. In that case the oral agreement related solely to the time of performance, without in any other respect modifying the written contract of sale of goods. In the case at bar the written contract is modified by the oral agreement, by striking out the clause therein stating: "If Mr. Wolf still owns the farm next winter, Mr. Schaap may have

the privilege of removing the timber at that time."

It is conceded that Mr. Wolf did not own the farm next winter, but it is claimed that nevertheless plaintiff had a right to remove the timber. This can mean only one thing, namely, that the above-quoted provision of the written contract was by the oral agreement eliminated, and an absolute agreement made that, no matter who the owner was, plaintiff should have the right to remove the timber in the winter of 1917-1918. If this is not so, then the oral agreement added nothing to the written contract, for under that he had a right to remove the timber the next winter if Wolf owned the farm; no additional agreement was necessary to give him that right. In other words, it is claimed that a contract

[blocks in formation]

ing, you could make an entirely different one by parol, using the written one as a basis of the change. The result would be that oral contracts preceded by a written one would be valid, though quite different therefrom, while wholly oral contracts would be void. To hold that an original party to a written contract is held estopped to insist upon the time of performance thereof when he himself has caused the delay, as in the Hirsch Case above cited, affects no condition of the written contract except the time of performance. Here one of the parties sought to be estopped was not a party to the original contract, but we do not rest the decision upon that ground, and express no opinion as to how that might affect the question of estoppel in a proper case.

It follows as a matter of course that if the oral agreement is not binding upon Wolf, who made it, it cannot be binding upon Lindow, even if he had notice of it. It will, therefore, not be necessary to pass upon the question of his taking good title through Heise, his grantor.

Judgment reversed as to appellants, and cause remanded, with directions to dismiss the complaint as to them upon the merits.

ANNOTATION.

Effect of the Statute of Frauds upon the right to modify, by subsequent parol agreement, a written contract required by the statute to be in writing.

[blocks in formation]
« PředchozíPokračovat »