116 Ky. 735 | Ky. Ct. App. | 1903
Opinion op the court by
Reversing.
In November, 1899, the appellees, J. T. Lanham, E. L. Lanham, and H. C. Truitt, executed and delivered to the appellants, W. J. McConathy and W. E. Burke, the following writing: “This contract witnesseth that: Whereas J. T. Lanham holds a lease of mineral rights in the lands owned by the Page and Krausee Mining and Manufacturing Company of St. Louis, Missouri, lying in Crittenden county, Kentucky, and, whereas, he has sold one-foiirth undivided interest in said mineral lease to T. J. Carter, and one-fourth interest to E. L. Lanham, and one-fourth interest to II. C. Truitt, now we, the said J. T. Lanham, E. L. Danham and IL C. Truitt, each bargains and sells to W. J. McConathy and W. E. Burke, both of Louisville,' Kentucky, our undivided rights in said lease for and in consideration of the sum of $200'.00 each, to be paid on or before the 31st day of December, 1S99. It is further agreed- that if the consideration herein named is not paid, on or before the 31st of December, 1899, this contract of sale shall be null and void. This-day of November, 1899, in Marion, Crittenden county, Kentucky. J. T. Lanham. E. L. Lanham. EL C. Truitt.” On -the 9th of July, appellees sued the appellants on this contract, and -alleged that while they had a right to cancel the contract because the $600 was not paid, as stipulated, on the 31st day of December, 1899, they had not done so,, because at the defendant’s request that their option should be extended until the following April they had agreed thereto, and that subsequent tó the 31st day of December the defendants, in
Upon this appeal, appellants ask a reversal on two grounds: First, because the court erred in overruling their demurrer to the petition as amended; and, second, because the circuit judge refused, upon their motion, to direct the jury to find a verdict in their favor. The contract expressly stipulates that if the $600 is not paid on or before the 31st day of December, 1899, it should thereafter be null and void. It seems clear that after the 31st of December, 1899, appellants coul'cf nut have required the appellees to have accepted a tender of the $600, ^for the reason that their right to do so under the contract had terminated. We think there can
The question then arises whether the alleged parol agreement by which appellants were given sixty days from the 31st of December, 1899, to pay for and take possession of the leased property, constitutes an enforceable obligation. Appellants claim that, as the original option was in writing, the subsequent verbal agreement substituting a different day for the payment of the consideration continued the writing in force, or, in other words, it was competent for the parties to a contract required by statute to be in writing to modify anld change its terms of payment by a subsequent verbal agreement of the parties thereto, and that the effect of such agreement was to continue in force such contract. While the question is not free from difficulty, we think the great weight of authority is to the effect that a written contract, within 'the statute of frauds, can not be modified by a subsequent agreement between the parties, unless such new agreement is also in writing. See Emerson v. Slater, 22 How., 28, 16 L. Ed., 360; Swain v. Seamens, 9 Wall., 254, 19 L. Ed., 554; Chitty on Contracts (11th Am. Ed.) 154;
For reasons indicated, the’ judgment is reversed, .and the cause remanded for proceedings consistent with this opinion.
Petition for rehearing by appellees1 overruled.