Thomson v. . Poor, 1 E.H. Smith 402

Thomson v. . Poor

1 E.H. Smith 402

1895

Check Treatment

Andrews, Oh. J.

It was assumed by both parties on the argument that under the case of Green v. Armstrong (1 Den. 550) the contract of April 1, 1885, for the sale,by the plaintiff to the defendants of the bark on the hemlock trees on the “ Harris ” lot, to be peeled by the purchaser, was a contract for the sale of an interest in lands required by the Statute of Frauds to be in writing. We shall determine the case upon this assumption without examination of its correctness. (See Nettleton v. Sikes, 8 Met. 34.) The contract was in fact in writing, and its validity is not questioned. The stress of the argument at the bar related to the competency of the evidence offered by the defendants to prove the oral modification of the original contract, made in the fall of 1885, by which the plaintiff, on the request of the defendants, consented on the condition that it was made satisfactory to Wakeley, the contractor with the plaintiff to do the lumbering on the lot, to reduce the amount of bark to be peeled by the defendants during each of the years subsequent to 1885 to 500 cords per year. The plaintiff’s counsel, in support of his objection to the competency of the evidence (which was ruled in his favor by the trial judge), relies upon the general principle that a written contract, falling within the Statute of Frauds, cannot be varied by any subsequent agreement of the parties unless such new agreement is also in writing. The further objection that a sealed contract, irrespective of its character, cannot be changed by a subsequent paroi executory agreement under the maxim quodque dissol/oitur eodem ligamine quo ligatur, and the objection that the consent of the plaintiff to reduce the quantity of the bark to be peeled in each year was conditional, will be referred to after considering the objection founded upon the Statute of Frauds.

In disposing of this objection it is important to notice that *408 the controversy in the present action relates solely to the performance of the contract of April 1, 1885, as respects the year 1886. By that contract the defendants were to peel in that year not less than 1,000 cords. In fact they peeled only 500 cords, and they allege as an excuse for not peeling the full 1,000 cords in that year, the oral agreement made in the fall of 1885. The effect of the oral agreement if made and valid as a contract was to change the terms of the original written agreement as to the time and manner of performance. It did not diminish the aggregate amount of bark to be peeled and taken by the defendants, but it extended the time within which it was to be peeled and taken to double the time fixed by the original contract and as a necessary incident extended the right of entry for the same period, and meanwhile during such extended period, by natural growth of the trees, bark might be brought within the sale, which otherwise would not come within the contract. If we were now required to decide the question whether a contract in writing within the Statute of Frauds can be altered as to the time of performance by a subsequent oral executory agreement made between the parties upon sufficient p.nnsirlei.-iat.inn we should find the question under the authorities involved in distressing perplexity. It is now the settled doctrine of the English courts, contrary to the earlier rule declared in Cuff v. Penn (1 M. & S. 21), that such a contract cannot be changed as to the mode or time of performance by an oral executory contract. (Stead v. Dawber, 10 Ad. & El. 57; Hickman v. Haynes, L. R., 10 C. P. 598.) In many of the states in this country the courts have adopted the rule laid down by Lord Ellenborough, in Cuff v. Penn (supra), and have held such proof admissible on the distinction between the contract which it was said the statute requires to be in writing and its performance, to which the statute does not apply. This is the rule in Massachusetts, New Hampshire, Maine, Ohio and Pennsylvania, and, perhaps, other states. The cases are referred to in a note in Wood on Frauds (p. 758). In this state the rule does not seem to bé authoritatively settled. In Blood v. Coodrich (9 Wend. 68), *409 Ck. J. Savage expressed the opinion that the time of performance of a written contract for the sale of land could not be enlarged by paroi, but the case was decided on another ground. There are dicta in this court and some decisions in other courts of the state to the contrary. (Blanchard v. Trim, 38 1ST. T. 225; Flynn v. MoKeon, 6 Duer, 203; Stone v. Sprague, 20 Barb. 509.) But we deem it unnecessary tp determine this inqportant question here, for the reason that, witliout disputing the doctrine contended for by theJearned^countlia?fc~Ttie oral!agreement sought t.o_ be proveywaPTnadmissible^-to .change the terms of the written contract, it was competent to establish, in connection with other facts offered to be shown, a waiver by the plaintiff of the requirements of the original contract that the defendants should peel 1,000 cords of bark in 1886, which had been acted upon and become executed by the lapse of time before the commencement of the action. VWe know of no principle of law which will permit a party to a contract, who is entitled to demand the performance by the other party of some act within a specified time and who has consented to the postponement of the performance to a time subsequent to that fixed by the 'contract, and where the other party has acted upon such consent and in reliance thereon has permitted the contract time to pass without performance,^to subsequently recall such consent and treat the non-performance within the original time as a breach of the contract. The original contract is not chang^d'Ioy such waiver, but it stands as an answer to the other parfy who Seeks to recover damages for non-performance induced by ai¿ unrecalled consent. The party may, in the absence of a valid and binding agreement to extend the time, revoke his 'consent so far as it hasmot .been acted n.pon^ but it would be mo'st inequitable to hold that a default, justified by the consent, happening during its extension, should furnish a ground of action. It makes no difference, as we conceive, whafitke character of the original contract may be, whether one within or outside the Statute of Frauds. The rule is wéll understood that if there is forbearance at the *410 request of a party, the latter is precluded from insisting upon, non-performance at the time originally fixed by the contract as a ground of action. Pfche case is not as manifest where the party who solicited the forbearance alleges the consent of the other party as an excuse for non-performance.^J But in such a case, where one party to a contract, before the time for performance by.the other party has arrived, consents, upon his request, to extend the time of performance, he must be presumed to-know that the other party relies upon the consent, and until he gives notice of withdrawal he has no just right to consider the latter in default, although meanwhile the contract time has elapsed. We think the principle of equitable estoppel applies in such case. (See Pierrepont v. Barnard, 6 N. Y. 279; Hoadly v. M’ Lcmie, 10 Bing. 482; Leather Co. v. Hieron imous, L. R., 10 Q. B. 140; Longfellow v. Moore, 102 111. 289.) The proof offered., by the defendants, if it had been received, would have permitted the inference that the omission of the defendants to peel more than 500 cords of bark in "tlie year 1886 was owing to the oral arrangement unrevolted, which, if it did not amount to an enforceable contract, operated nevertheless to excuse the alleged breach.

The objection that a sealed contract can only be changed by a contract of equal solemnity according to the principle of the common law to whiclyve have adverted (assuming that the principle has any longer any practical existence, see Mc Creery v. Day, 119 N. Y. 1), is answered by what has. been said on the subject of waiver which applies equally to sealed and unsealed contracts. The objection that the modified agreement was conditional is met by the offer which by fair construction included an offer to prove that the proposed limitation of the amount of bark to be peeled was made satisfactory to Wakeley. The learned counsel for the plaintiff criticizes the offer of proof as indefinite and as not in some respects conforming to the defense in the answer. The plaintiff is not in a position to insist upon great exactness in these respects in view of the character of his own pleading and the ground upon which the recovery proceeded. We think the offer fairly disclosed the substantial *411 matter of defense, and although it treated the modified agreement as a binding contract, the proof offered, though it may have been ineffectual to accomplish that result, would we think upon the case as disclosed by the record, if received, have authorized the inference of a waiver completely executed. The judgment should be reversed and a new trial granted. All concur.

Judgment reversed.