111 Minn. 513 | Minn. | 1910
The facts in this case are as follows: In September, 1905, the parties to this action entered into a written contract by the terms of which plaintiffs undertook and agreed to cut and deliver, at a stated point, all the pine, spruce, tamarack, and balsam timber on certain lands owned or controlled by defendant, at the agreed compensation of $5.50 per thousand feet for that upon a specified part of the land, and $6 per thousand feet for the remainder. The contract provided that plaintiffs should “log and deliver eight million feet of logs during the logging season of 1905 and 1906, and eight million [feet] each logging season thereafter until said timber is all cut and delivered.” Plaintiffs fully performed the contract for the-logging season of 1905-1906, and settlement was had and payment made by defendant. The heavy snow and severe weather during-that season rendered the work difficult, and steady employment of the men impracticable, which, together with the increased cost of labor and supplies, resulted in a financial loss to plaintiffs. Before the opening of the season of 1906-1907, plaintiffs laid the situation before defendant, and requested an increase in their compensation. Defendant’s officers appreciated the difficulties surrounding the preceding logging season, and verbally agreed to pay plaintiffs for the logs to be cut during the then approaching season an additional fifty cents per thousand feet. Plaintiffs performed the contract for that season, and defendant paid them at the increased rate of compensation so agreed upon. Prior to the season of 1907 — 1908, plaintiffs, for the reasons before advanced, viz., the increased cost of labor and supplies, again applied to defendant for a continuation of the additional fifty cents per thousand feet, and defendant’s officers granted the request, and verbally agreed to pay the increased rate for logs cut during that season. Plaintiffs then went forward, and during
There is no controversy about the facts stated, though there is a dispute upon one branch of the case, which will be referred to in its proper connection. With reference to the facts already outlined, it is contended by defendant that the original contract for cutting and" delivering the logs was one which the statute of frauds required to be in writing, that it was put in writing in conformity therewith, and that the subsequent oral agreement between the parties, by which defendant was to pay to plaintiffs an additional fifty cents per thousand feet, was invalid, and could not be shown by parol testimony. It is undoubtedly sound doctrine that an executory contract, required by the statute of frauds to be in writing, cannot, so long as it remains executory, be modified by a subsequent oral agreement, the terms of which are also executory. But the rule has no application where the modified agreement is acted upon by the parties and has been fully performed and executed by one of them. In such case, if the modification be upon sufficient consideration, the rights and liabilities of the parties are controlled by the new agreement. McClay v. Gluck, 41 Minn. 193, 42 N. W. 875; Burns v. Fidelity Real Estate Co., 52 Minn. 31, 53 N. W. 1017; Spinney v. Hill, 81 Minn. 316, 84 N. W. 116; Lally v. Crookston Lumber Co., 85 Minn. 257, 88 N. W. 846; Youngberg v. Lamberton, 91 Minn. 100, 97 N. W. 571; Denison v. Sawyer, 95 Minn. 417, 104 N. W. 305.
In the ease at bar the modified agreement had reference solely to one season’s cut under the contract, viz., the season of 1907 — 1908. The contract in this respect was severable, and each season’s work, when completed, represented an independent part of the contract, a compliance with which entitled plaintiffs to their full compensation.
The case of Grand Forks Lumber Co. v. McClure Logging Co., 103 Minn. 471, 115 N. W. 406, is not in point.' In that case the defendant had contracted in writing to cut and deliver, during a series of years, a large amount of timber. The contract required the delivery to be made at a certain place and fixed the compensation of defendant. Defendant failed to perform the contract, and the action was brought to recover damages therefor. Defendant set up in defense a verbal modification of the contract, by which it was relieved from delivering certain of the logs, and also certain changes in the payments provided by the original contract. The court held •that the alleged modification was invalid. In this the court was •entirely right, for the modification claimed was executory, and continued during the life of the original contract, which extended beyond a year. Unlike the case at bar, there was no performance of the modified conditions. Defendant was in default, and attempted to justify his failure to perform by the alleged parol change in the terms of the contract.
This covers all questions presented by the assignments of error requiring special mention.
Order affirmed.