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tendered conveyance of the lots to position in reliance upon it. Acthe broker. The latter accepted the cording to this theory, the defendmoney, but refused the lots, and ant was acting upon the commission sued for the balance of his commis contract as orally modified, when he sions under the original contract, signed the contract

signed the contract with Baker; claiming, as does the plaintiff in the under the plaintiff's theory, on the instant case, that the oral modifica- contrary, in signing that contract, tion as to his commissions was in the defendant was acting upon the valid with respect to a contract original unmodified commission conwithin the Statute of Frauds. The tract. The making of the contract court held the oral modification bind with Baker was not, therefore, an ing, because the broker "not only act so distinctly referable to the induced the appellants to pay it the

modified commission contract as sum of $200, but it induced the ap clearly to mark it as an act in perpellant to enter into an exchange of formance of that contract, as disproperties which it would not have tinguished from an act in performentered into had the modified agree ance of the original contract. Thus ment not been made.” In that case the alleged oral modification cannot the decision was based partly upon be held valid on the theory of subthe fact that the exchange of prop sequent performance, unequivocally erties had been effected, and part of recognizing and executing the conthe commission paid and accepted, tract as modified, but only, if at all, and the remainder tendered under upon the theory of estoppel arising the contract as modified, and partly from the precedent conduct of the upon the rule that the broker was plaintiff. estopped by his conduct; but the ex There is no reason, in our opinistence of the latter rule was recog- ion, why a party to a contract withnized.

in the Statute of Frauds may not be It has been held in some cases that estopped by his conduct from disputthe subsequent oral modification of a ing a subsequent oral modification contract required by the statute to of it, to the same extent as a party be in writing is invalid unless it ap to any other contract. It is a prinpears that the parties afterwards ciple of equity, superior to any techexecuted and performed the contract nical or artificial legal rules, which as modified. In such cases they takes effect whenever the assertion would have estopped themselves

of such a rule would result in perfrom questioning the modification petrating or ratifying a fraud. We by their subsequent conduct in ac

therefore conclude quiescing in and accepting the con

that the defendant tract as modified, evidenced by their was entitled to in- tion of broker's performance of it. Such was the troduce evidence in holding of this court with reference support of the averments of his to the oral modification of the rental answer, and that there was in his stipulated in a written lease, where- pleading as well as in the prelimby a decreased rental was paid and inary questions propounded to his accepted. Bowman v. Wright, 65 witnesses, a sufficient foundation for Neb. 661, 91 N. W. 580, 92 N. W. his offered proof. 580.

Another contention of the defendIn the instant case, however, the ant is that the contract with Baker contract as orally modified does not, was so ambiguous with regard to the under the defendant's pleading and value at which the land in Perkins offered proof, rest upon estoppel county was to be taken in the arising from the subsequent ac transaction, as to indicate a mutual quiescence of the parties in it, but mistake which would render that upon estoppel arising from the pre contract unenforceable. The decedent conduct of one of the parties fendant covenanted to take this land in inducing the other to change his at $3,350 and to assume a mortgage

Evidence of oral modifica

contract.

erroneous recital of valu

Vendor and

(- Neb, —, 181 N. W. 135.) on it for $650. He contends that the adopted by and made the opinion of

figures should have the court. Specific

been $4,000, as the performanceamount at which

Petition for rehearing denied. ation-effect.

the land was to be

valued. We are convinced by our examination of the

NOTE. contract, however, that the value intended was $4,000, and this is dis The decision in HECHT V. MARSH closed by reading all the provisions (reported herewith) ante, 1, is an of the contract together.

illustration of the reluctance generalThe defendant, moreover, cannot ly shown by the courts to allow the be heard to say that the contract Statute of Frauds to invalidate an

was void because of oral modification of a written contract purchaser

an erroneous recital within the Statute of Frauds, which

therein, since it ap has been performed. In this decision exchange land- pears from the rec the court makes clear the principle

ord, independently that an executory oral modification is of the contract, that he intended to ineffectual, but it is there held that, take the land at $4,000, and that the where in reliance upon the oral agreealleged error in the contract did not

ment a party has performed or mislead or injure him.

changed his position to his disadvanBecause of an error in the rejec- tage, the rights and liabilities of the tion of offered evidence, as afore parties will be determined by the said, we recommend that the judg- modified agreement. The general ment of the court below be reversed question of the effect of the Statute and the cause remanded.

of Frauds upon the right to modify, Per Curiam:

by subsequent parol agreement, a For the reasons stated in the fore written contract required by the statgoing opinion, the judgment of the ute to be in writing, is discussed in District Court is reversed, and the the annotation to SCHAAP V. WOLF, cause remanded, and this opinion is post, 10.

error in valuation of

effect.

[blocks in formation]

Contract - modification by parol.

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.] sale of standing timber Statute be in writing, under the Statute of of Frauds.

Frauds. 2. A sale of standing timber must [See 17 R. C. L. 1068-1072.]

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.:

Mr. M. C. Mead, for appellant Wolf: Action to recover damages for re The sale of standing timber is a sale fusal to permit plaintiff to enter cer

of an interest in real estate. tain lands and cut the standing

Daniels v. Bailey, 43 Wis. 566. timber thereon. December 18, 1916,

Plaintiff should have brought an acthe defendant Wolf owned the land,

tion in equity to establish his title to and entered into a written unrecord

this standing timber.

Peshtigo Lumber Co. v. Ellis, 122 ed contract with the plaintiff, per

Wis. 433, 100 N. W. 834. mitting him to enter and cut all the

Defendant Wolf is entitled to judgstanding timber thereon, all the tim ment in his favor upon the special ber to be removed before May 1, verdict dismissing the plaintiff's ac1917. It further provided: “If Mr.

tion as against himself. Wolf still owns the farm next win

30 Cyc. p. 129; Lull v. Fox & W. ter, Mr. Schaap may have the priv. Improv. Co. 19 Wis. 101; Greene v. ilege of removing timber at that

Nunnemacher, 36 Wis. 50; Draper v. time."

Brown, 115 Wis. 361, 91 N. W. 1001;

Dicey, Parties to Actions, 429. On May 29, 1917, Wolf conveyed

Messrs. George L. Mooney and Bow. the land to the defendant Heise, and ler & Bowler, for appellant Lindow: on August 29, 1917, he conveyed it A purchaser may not only enjoy the to the defendant Lindow.

property free from any adverse claims The jury found: (1) That on of which he had no notice at the time April 2, 1917, Wolf without consid of his purchase, but he may also eration orally agreed to allow plain

transfer his right in this respect to tiff to cut and remove, during the

others, and the fact that his alienee winter of 1917-1918, the balance of

has notice is immaterial; it being thus the timber then uncut; (2) that be

the rule that a purchaser with notice fore Wolf conveyed to Heise he in

from a purchaser without notice has

all the rights of the latter. formed him of the written agree 16 Am. & Eng. Enc. Law, 841; ment, but not of the oral one; (3) Simon v. Kaliske, 1 Sweeny, 304; that they did not mutually agree Varick v. Briggs, 6 Paige, 323; East that Heise should permit plaintiff to v. Pugh, 71 Iowa, 162, 32 N. W. 309. cut and remove the timber in the The oral extension or modification winter of 1917-1918; (4) that at the of the written agreement made and extime of said conveyance it was not

ecuted on December 18th, 1916, beorally agreed between Heise and

tween the plaintiff and defendant Wolf that it was made subject to the

Wolf, is void, and confers no rights

on the plaintiff. condition that plaintiff should have 17 Am. & Eng. Enc. Law, 448, § the right to cut and remove the tim 454; Hanson v. Gunderson, 95 Wis. ber in the winter of 1917-1918; (5) 613, 70 N. W. 827; Foley v. Marsch, that Lindow, at and before the time 162 Wis. 25, 154 N. W. 982; Welsh v. he bought from Heise, had notice Gossler, 89 N. Y. 540. that Wolf had sold plaintiff all the The written agreement was not exetimber; had notice of the written cuted under seal and hence conveyed agreement, and also of the oral

no legal title to the standing timber, agreement of April 2, 1917; (6)

because it is a part of the real estate;

but only served to create an equitable that plaintiff ceased cutting in the

right in the timber which a court of spring of 1917, relying upon the ex

equity would protect and enforce in a tension of time granted in the oral

proper case. agreement; and (7) damages $225.

Peshtigo Lumber Co. v. Ellis, 122 The court dismissed the action as to Wis. 433, 100 N. W. 834; Bruley V. the defendant Heise, and entered Garvin, 105 Wis. 625, 48 L.R.A. 839, 81 judgment against the defendants

N. W. 1038; Marsh v. Bellew, 45 Wis. Wolf and Lindow for the damages 36; Lillie v. Dunbar, 62 Wis. 198, 22 found, with interest and costs, from N. W. 467; Price & B. Co. v. Madison, which judgment they appealed. 17 S. D. 247, 95 N. W. 933; Emerson

(- Wis. 181 N. W. 214.) v. Shores, 95 Me. 237, 85 Am. St. Rep. Vinje, J., delivered the opinion of 404, 49 Atl. 1051.

the court: If the plaintiff had any rights The defendant Wolf contends that against the defendants, his relief since the oral agreement of April 2, could be obtained only in a court of

1917, relates to an interest in land, equity, and not in an action at law.

-standing timber,-it is void under Peshtigo Lumber Co. v. Ellis, 122

the Statute of Frauds. Section Wis. 433, 100 N. W. 834; Jilek v. Zahl, 162 Wis. 157, 155 N. W. 909.

2302, Stat. 1919. The defendant Mr. H. J. Rooney, for respondent:

Lindow makes the same defense, A verbal extension of the time of and further claims that, since his performance of a written agreement, grantor, Heise, was a bona fide purmade by the parties and relied upon by chaser for value and without notice the plaintiff, is a valid extension, and of the oral extension of time for the "defendant is estopped from taking removal of the timber, he took as advantage of the failure of the plaintiff good a title as Heise had, and is to comply with the terms of the origi- therefore not liable—citing Tiffany, nal contract.” Hirsch Rolling Mill Co. v. Mil

Real Property, 1095; Simon v. Kalwaukee & F. River Valley R. Co. 165

ski, 1 Sweeny, 304, and East v. Wis. 220, 161 N. W. 747; Lawton Pugh, 71 Iowa, 162, 32 N. W. 309. v. Racine, 137 Wis. 593, 119 N. W. If the first of these respective claims 331; Thomson v. Poor, 147 N. Y. is sustained, it disposes of the case 402, 42 N. E. 13; Scheerschmidt v. in favor of the appellants, and alSmith, 74 Minn. 224,77 N. W. 34; leged errors in procedure need not Newberry v. Chicago Lumbering Co.

be discussed. 154 Mich. 84, 117 N. W. 592; McDow

That a contract for the sale of ell v. McDowell, 141 Iowa, 286, 31

standing timber relates to an inL.R.A.(N.S.) 176, 133 Am. St. Rep. 170, 119 N. W. 702; 20 Cyc. 287; Pom.

terest in land, and comes within the Eq. Jur. $ 803; 16 Cyc. 726.

Statute of Frauds, Defendant Lindow was not a pur

is well settled in this

Contract-sale of

standing timber chaser in good faith.

state (Daniels v. Mueller v. Brigham, 53 Wis. 173, 10 Bailey, 43 Wis. 566; N. W. 366; Brinkman v. Jones, 44 Wis. Seymour v. Cushway, 100 Wis. 590, 498; Helms v. Chadborne, 45 Wis. 60;

69 Am. St. Rep. 957, 76 N. W. 769, Stewart v. McSweeney, 14 Wis. 468;

and cases cited; Huntington v. BurQuinlan v. Pierce, 34 Wis. 304; Berg

deau, 149 Wis. 268, 135 N. W. 845, eron v. Richardott, 55 Wis. 129, 12 N. W. 384; First Nat. Bank v. Chafee, 98

and cases cited), and is not conWis. 42, 73 N. W. 318; Coe v. Manseau, tested by plaintiff. But he contends 62 Wis. 81, 22 N. W. 155; Herren v. that, though the contract is within Strong, 62 Wis. 223, 22 N. W. 408; the Statute of Frauds, the oral Martin v. Morris, 62 Wis. 418, 22 N. W.

agreement of April 2 was but an ex525; Meade v. Gilfoyle, 64 Wis. 18, 24

tension of time of performance, and N. W. 413; Wickes v. Lake, 25 Wis. 71.

under the rule in Hirsch Rolling Plaintiff had an adequate remedy

Mill Co. v. Milwaukee & F. River at law against defendants. Micek v. Wamka, 165 Wis. 97, 161 N.

Valley R. Co. 165 Wis. 220, 161 N. W. 367; Sullivan v. Ashland Light,

W. 741, the defendants are estopped Power & Street R. Co. 156 Wis. 445, from setting up the statute as a de146 N. W. 506; Peters v. Chicago & N. fense. In that case the oral agreeW. R. Co. 165 Wis. 529, 162 N. W.

ment related solely to the time of 916; Hommel v. Badger State Invest. Co. 166 Wis. 235, 165 N. W. 20; Scheer

performance, without in any other schmidt v. Smith, 74 Minn. 224, 77 N. respect modifying the written conW. 34; Knauf & T. Co. v. Elkhart Lake tract of sale of goods. In the case Sand & Gravel Co. 153 Wis. 306, 48 at bar the written contract is modL.R.A.(N.S.) 744, 141 N. W. 701;

ified by the oral agreement, by strikSwihart v. Harless, 93 Wis. 211, 67

ing out the clause therein stating: N. W. 413; Douglas County v. Walbridge, 38 Wis. 179; Zeller v. Martin,

“If Mr. Wolf still owns the farm 84 Wis. 5, 54 N. W. 330.

next winter, Mr. Schaap may have

--Statute of
Frauds.

the privilege of removing the timber ing, you could make an entirely at that time."

different one by parol, using the It is conceded that Mr. Wolf did written one as a basis of the change. not own the farm next winter, but The result would be that oral conit is claimed that nevertheless plain- tracts preceded by a written one tiff had a right to remove the timber. would be valid, though quite differThis can mean only one thing, name ent therefrom, while wholly oral ly, that the above-quoted provi- contracts would be void. To hold sion of the written contract was by that an original party to a written the oral agreement eliminated, and contract is held estopped to insist an absolute agreement made that, no upon the time of performance therematter who the owner was, plaintiff of when he himself has caused the should have the right to remove the delay, as in the Hirsch Case above timber in the winter of 1917–1918. cited, affects no condition of the If this is not so, then the oral agree written contract except the time of ment added nothing to the written performance. Here one of the parcontract, for under that he had a ties sought to be estopped was not right to remove the timber the next a party to the original contract, but winter if Wolf owned the farm; no we do not rest the decision upon that additional agreement was necessary ground, and express no opinion as to give him that right. In other to how that might affect the question words, it is claimed that a contract of estoppel in a proper case.

within the Statute It follows as a matter of course -modification

of Frauds can, by that if the oral agreement is not by parol.

an oral agreement, binding upon Wolf, who made it, it be validly changed as to a material cannot be binding upon Lindow, condition therein. This is not the even if he had notice of it. It will, law. Hanson v. Gunderson, 95 Wis. therefore, not be necessary to pass 613, 70 N. W. 827; Saveland v. upon the question of his taking good Western Wisconsin R. Co. 118 Wis. title through Heise, his grantor. 272, 95 N. W. 130, and cases cited. Judgment reversed as to appelIf that could be done, it would prac- lants, and cause remanded, with ditically nullify the Statute of Frauds; rections to dismiss the complaint as for, if you had any contract in writs 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.

I. Introductory, 10.
II. Rule that contract cannot be modi-

fied by oral agreement:
a. In general, 14.
b. Application as dependent up-

on character of modification,

29.
c. Action taken on oral agree-

ment, 34.

III. Rule that oral modification of a

matter relating to the perform

ance is valid, 36. IV. Rule that oral modification which

has been acted upon is valid: a. In general, 39.

b. Theories, 46.
V. Extension of time, 52.

1. Introductory. It is a well-settled rule that a written agreement not within the Statute of Frauds may be modified by the subsequent oral agreement of the parties. 6 R. C. L. 299; Elliott, Contr. § 1988; 3 Page, Contr. § 1348; 2 Page, Contr. 8 608; 9 Cyc. 597, 598. That a

contract under seal cannot be modified by subsequent oral agreement is the doctrine of some cases, but the contrary is held as to this in other cases. 6 R. C. L. 300; Elliott, Contr. § 1988; 9 Cyc. 596.

The parol-evidence rule excludes only prior and contemporaneous nego

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