| Miss. | Oct 15, 1857
delivered the opinion of the court.
The plaintiff below brought this action in the Circuit Court of Monroe county, to recover the amount of two writings obligatory, executed by the defendant, with condition that they were to be
The plaintiff failed to make the title before the first obligation became due; but before the maturity of the second obligation, the defendant requested the plaintiff to procure Gladney and wife, who held the legal title, to convey the land to Carlisle, to whom the defendant had sold. This conveyance being executed, and accepted by Carlisle, the question is, whether the condition precedent has been performed, so as to enable the plaintiff to recover.
It is said that this was a contract relating to the sale of land; and that this new arrangement was an attempt to change, by a parol agreement, the original contract; and it is, therefore, invalid under the Statute of Frauds.
This statute has relation alone to executory contracts, and can never apply to contracts which have been fully executed, for the reason that such contracts as the latter can never be made the foundation of an action, unless they should be connected with some collateral matter. It may be true that this new arrangement could not be enforced, if it were merely executory; but this is not the question. The object was not to make a new contract, but merely to stipulate what should be a performance of the original contract; and it certainly cannot be contended that the parties could not agree, that performance might be made in a manner different from that originally stipulated. The party bound to convey performed his contract as soon as he complied with its terms, or conveyed in the manner prescribed by the party interested. Performance of contracts may be waived, either as to time, place, or manner of performance.
Judgment affirmed.