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On the Effect of Parol Evidence of a Variation or Waiver

of a Written Contract.

THE question as to the admissibility of parol evidence to vary or annul a written contract, has recently been before the courts on several occasions. The judgments then delivered, render it unnecessary to insert the earlier decisions. By an agreement in writing, the plaintiff contracted to sell the defendant several lots of land, and to make a good title to them; and a deposit was paid. It was afterwards discovered, that a good title could not be made to one of the lots; and it was then verbally agreed between the parties, that the vendee should waive the title as to that lot. The vendor delivered possession of the whole of the lots to the vendee, which he accepted. In an action brought by the vendor to recover the remainder of the purchase-money, the declaration stated, that the defendant agreed to deduce a good title to all the lots except one, and that the vendee discharged and exonerated him from making out a good title to that lot, and waived his right to require the same. Lord Denman, C. J., in delivering the opinion of the court (m), after reading the 4th section of the statute of frauds, said: "It is to be observed, that the statute does not say in distinct terms, that all contracts or agreements concerning the sale of lands shall be in writing; all that it enacts is, that no action shall be brought unless they are in writing. And as there is no clause in the act, which requires the dissolution of such contracts to be in writing, it should rather seem that a written contract concerning the use of the lands may still be waived and abandoned, by a new agreement not in writing, and so as to prevent either party from recovering on the contract which was in writing. It is not, however, necessary to give an opinion upon that point; as this is not a waiver and abandonment of the whole written agreement, but only a part of it; and the question is, what is the effect of that? It may be said by the plaintiff, that this does not in any degree vary what is to be done by either party; that the same land is to be conveyed, there is to be the same extent of interest in the land, and it is to be conveyed at the same time, and the same price is to be paid; and that it is only an abandonment of a collateral point. But we think the object of the statute of frauds was to exclude all oral evidence as to contracts for the sale of lands, and that any contract which is sought to be enforced, must be proved by writing only. But, in the present case, the written contract is not that which is sought to be enforced, it is a new contract which the parties have entered into, and that new contract is to be proved, partly by the former written agreement, and partly by the new verbal agreement; the present contract, therefore, is not a contract entirely in writing; and as to the title being collateral to the land, the title appears to us to be a

(m) Goss v. Lord Nugent, 5 B. & Ad. 58.

most essential part of the contract, for, if there be not a good title, the land may, in some instances, better not be conveyed at all; but our opinion is not formed upon the stipulation about the title being an essential part of the agreement, but upon the general effect and meaning of the statute of frauds, and that the contract now brought forward by the plaintiff is not wholly a contract in writing." A rule nisi, which had been obtained for entering a nonsuit, was accordingly made absolute.

In a subsequent case (n), the written agreement was, that the plaintiff should grant a lease to the defendants, and the defendants should take certain quantities of straw and other things at a valuation, to be made by persons named respectively by plaintiff and defendants, or their umpire, in the usual way; and the defendants entered under the agreement, and took possession of the straw, &c. A parol agreement was afterwards entered into, that the valuation should be made by one D. The defence set up to an action to recover the amount of D.'s valuation was, that no valuation had been made pursuant to the original agreement. It was holden, on demurrer, that, although the part of the written agreement which was varied by parol might have been good of itself without writing, by reason of the acceptance of the straw, &c., yet it was not competent to the parties, by agreement not in writing, to separate into two parts the subject-matters of the original agreement, and to substitute a new agreement, not in writing, as to the straw, &c.; and judgment was given for the defendants. In deciding this case, the court adverted to Goss v. Lord Nugent, as a case in which it was doubted whether it was competent to the parties to waive and abandon an agreement in writing by parol, but expressed no direct opinion on the subject.

In another case, the plaintiff brought his action to recover the deposit paid by him on entering into a written contract, by which the defendant agreed to sell the lease of a house and deliver possession by a day named. It appeared, at the trial, that on that day neither of the parties were in a situation to carry the contract into effect, but within a reasonable time afterwards the obstacles might have been removed; but before that time arrived, the plaintiff insisted that the contract was at an end, and demanded the return of the deposit. The count, upon which the court held the plaintiff might recover, was one for money had and received. Tindal, C. J., in delivering the opinion of the court, stated (o), that the question was, "Can the day for the completion of the purchase of an interest in land, inserted in a written contract, be waived by a parol agreement, and another day be substituted in its place, so as to bind the parties? We are of opinion that it cannot. This is an agreement for the sale of land, upon which, by the statute of frauds,

(n) Harvey v. Grabham, 5 A. & E. 61.

(0) Stowell v. Robinson, 3 Bingh. N. C. 928; 5 Scott, 196.

section 4, no action can be brought, unless it is in writing, and signed by the party to be charged therewith, or his agent thereunto lawfully authorized.' Now we cannot get over the difficulty which has been pressed upon us, that to allow the substitution of a new stipulation as to the time of completing the contract, by reason of a subsequent parol agreement between the parties to that effect, in lieu of a stipulation as to time contained in the written agreement signed by the parties, is virtually and substantially to allow an action to be brought on an agreement relating to the sale of land, partly in writing signed by the parties, and partly not in writing, but by parol only, and amounts to a contravention of the statute of frauds."

In the following case in assumpsit (p), the declaration stated, that plaintiff agreed to buy, and defendant to sell, a cargo, to be delivered" on the 20th to the 22nd instant," to be paid for by an acceptance three months from delivery; and that afterwards, before the 22nd, plaintiff, at request of defendant, gave time for the delivery to the 24th: breach, that defendant, though requested (to wit, on 24th,) to deliver, had not, on 24th or any other time, delivered special damage by rise of price between the agreement and breach. Plea, that the giving of time was part of a contract for the sale of goods at the price of above 107.; and that there was no part acceptance, or earnest, or note or memorandum in writing. Replication, that the giving of time was not part of the contract, &c. It appeared that there was a written contract, as stated in the declaration, for the delivery, "on the 20th to the 22nd," but the 22nd falling on Sunday, plaintiff, at defendant's request, verbally agreed to enlarge the time to the 23rd or 24th. The price fluctuated between the time of the agreement and the 24th, being higher on the last day. It was understood that the enlargement of time would postpone the delivery of the three months' acceptance. It was holden, that, on these facts, defendant was entitled to the verdict, the enlargement of time having materially varied the contract, substituting for it a new contract on a similar consideration, and not being merely a dispensation from performance on a particular day. The judgment of the court, delivered by Lord Denman, contains the following passage, which appears, however, to apply more accurately to the 4th than to the 17th section:-"It was urged by the plaintiff's counsel, that the defendant's argument reduced him to an inconsistency; that he alleged, on the one hand, an alteration of the contract by parol, and yet, on the other, asserted that such alteration by parol could not be made. But this is, in truth, to confound the contract with the remedy upon it. Independently of the statute, there is nothing to prevent the total waiver, or the partial alteration, of a written contract not under

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seal, by parol agreement; and, in contemplation of law, such a contract so altered subsists between these parties; but the statute intervenes, and, in the case of such a contract, takes away the remedy by action.”

Plaintiff entered into a written agreement with the defendant, for the purchase of a cargo to be shipped on board a vessel on her next arrival at a certain port. On the arrival of the vessel, the defendant verbally requested a postponement of the shipment, until she should have completed another voyage. Plaintiff assented to this proposal, and the voyage was made. The defendant, on the second arrival of the vessel, declined taking the goods, which were resold by the plaintiff; who brought his action to recover the loss sustained by the defendant's non-performance of the contract. It was holden (9), that the plaintiff could not recover. Parke, B., said, "Here there was an original contract in writing to send these goods by the first vessel; an alteration as to the time of their delivery was subsequently made by parol; and the point to be decided is, whether such an alteration, by parol, of the written contract, can be binding. It appears to me that it cannot; and that the same rule must prevail as to the construction of the 17th section, which has already prevailed (r) in the construction of the 4th section." "It appears to me that no distinction can be made; and that it is unnecessary to inquire, what are the essential parts of a contract, and what not; and that every part of the contract, in regard to which the parties are stipulating, must be taken to be material."

III. The Fifth and Sixth Sections, relating to the Execution and Revocation of Wills, p. 877; and the Stat. 7 Will. IV. & 1 Vict. c. 26, for the Amendment of the Laws with respect to Wills, p. 895.

THE sections of the Statute of Frauds relating to wills have been repealed, as to all wills made since 1837, by the stat. 7 Will. IV. & 1 Vict. c. 26, s. 2. (s); although the law of wills made since that date does not come within the title "Statute of Frauds," yet it has been thought advisable to insert the new statute, and some of the decisions upon it, in this section, and to divide the subject into two heads.

First, As to Wills made before 1838; 5th Section of the Statute of Frauds." All devises and bequests of any lands or tenements, devisable either by force of the statute of wills, or by this statute, or by the custom of Kent, or of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the

(q) Marshall v. Lynn, 6 M. & W. 109. (r) Goss v. Lord Nugent, 5 B. & Ad. 58.

(s) See post, p. 895.

same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the devisor, by three or four credible witnesses, or else they shall be utterly void and of none effect."

"All facts relating to the subject-matter and object of the devise, such as that it was or was not in the possession of the testator, the mode of acquiring it, the local situation, and the distribution of the property, are admissible to aid in ascertaining what is meant by the words used in the will" (t).

All Devises of any Lands or Tenements.]-Although these words are very general, and extend to customary freeholds (u), not passing by surrender, yet it has been holden, that copyhold land (x), and customary (y) estates, passing by surrender, are not comprehended within them. In these cases, the estate is considered as passing by the surrender of which the will only directs the uses. Consequently, it is not necessary that such will should be executed with the solemnities required by this statute. Hence, a mere draught of a will, the signing and publication of which were prevented by the sudden death of the testator, has been holden sufficient to pass copyhold land surrendered to the use of the will. N. By stat. 55 Geo. III. c. 192, dispositions by will, by any person dying after 12th July, 1815, of copyhold estates, are made effectual without any previous surrender to the use thereof. But this statute only supplies the want of a formal surrender, and does not extend to a case where the surrender is a matter of substance, as where it is required to be accompanied by the separate examination of wife (z). Since this statute, a copyhold will pass (a) under a general devise of real estate, although there be no surrender to the use of the will. But the will must contain a disposition of the copyhold, either expressed or implied (b). The statute applies to wills made before the statute, as well as those which were made after (c). An heir at law, who has not been admitted to a copyhold estate, which has descended to him, nor paid the lord's fine due on admission, may, notwithstanding, devise (d) the same.

Shall be in Writing.]—This provision is merely a repetition of what had been required by the stat. 32 Hen. VIII. c. 1, which first gave power of disposing of land by will. But writing was the only solemnity which that statute required. Hence, before the statute

(t) Per Parke, J., Doe d. Templeman v. Martin, 4 B. & Ad. 785.

(u) Hussey v. Grills, Ambl. 299.

(x) Roe d. Gilman v. Heyhoe, 2 Bl. R. 1114. See also The Attorney General v. Barnes, 2 Vern. 598; Attorney General v. Andrews, 1 Ves. 225; Tuffnell v. Page, 2 Atk. 37.

(y) Doe d. Cook v. Danvers, 7 East, 299; Carey v. Askew, coram Sir L. Kenyon, M. R., May 9, 1786, 2 Bro. C. C. 58,

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