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of a Written

Contract.

house as tenant from year to year, with the option Parol Waiver on his part to call on them to grant him a lease of the house for twenty-eight years, upon certain terms which the defendant contended were subsequently varied by a substituted agreement by parol, it was held that such substituted agreement must be in writing to satisfy the statute.

But semble, per Amphlett

, B., that if there had been anything in writing to show that the lease granted was accepted in substitution for that originally stipulated for, the action might have been maintained : Sanderson v. Graves, L. R., 10 Ex. 234.

In Stead v. Dawber, 2 Per. & D. 447; S. C., 10 Ad. Time of & El. 57, the plaintiff stated a written contract for essential part the sale of goods to him, to be delivered on the 22nd of contract for of May, and that the plaintiff afterwards, at the of a fluctuatrequest of the defendants, gave them time for deli- ing value. very until the 24th of May, assigning for breach Steady: non-delivery on the 24th. The defendants pleaded, that the extension of the time for delivery formed part of a contract between the plaintiff and defendants for the sale of goods for the price of upwards of 101.; that the plaintiff did not accept any part of the goods, nor give anything in earnest; and that no note or memorandum in writing of the bargain was signed by the defendants, or either of them, or by their agent. Replication, that the said giving of time, &c., was not part of the contract for the sale of the goods; and issue joined. The defendants succeeded upon this plea; the Court holding, that Parol variathe parties had substituted a new contract for the tion of a old one—the same as the old one in all respects, tract held to except as to the day of delivery and the date of the be a total accepted bill (which depended on the time of deli- of it. very). See Price v. Dyer, 17 Ves. 356; ante, p. 374; Jackson v. Galloway, 6 Scott, 792.

In Marshall v. Lynn, 6 M. & W. 109, the point Marshall v. was decided generally on the authority of Stead v.

Lynn. Dawber, that the time for performing a written con- quired to be tract within the 17th section of the Statute of in writing by Frauds, if mentioned in the writing, cannot be afterwards varied without writing. Parke, B., said: “It varied by

parol. seems to me to be unnecessary to inquire, what are

abandonment

Contract re

the statute

of a Written

Contract.

written contract considered to be immaterial

may be

conduct. Carpenter v.

Parol Waiver the essential parts of the contract, and what not ; and

that every part of the contract, in regard to which

the parties are stipulating, must be taken to be No part of a

material.”

In Carpenter v. Blandford, 3 Man. & Ry. 91; 8 B.

& Cr. 575, by the agreement the deposit was to be at law.

forfeited if the purchaser did not complete his side Forfeiture

of the agreement, part of which was for an appraisewaived by

ment of stock in trade on a certain day; and the parol or by

plaintiff (the vendor), having been informed that the

defendant could not complete the appraisement until Blandford.

the following day, and not having objected at the time, it was held, that he could not on the following day object and claim the forfeiture, but that the plaintiff might recover his deposit. The Court said, that a forfeiture was strictissimi juris, and the defendant must show that he had done everything which he was bound to do, to entitle him to insist on the forfeiture, and that he had not done anything to waive that right. The nature of the stipulation in this case seems to distinguish it from those which have been previously cited : vide, infra, tit. LEASES.

The well-known rule in equity is, to consider stipulations as to time binding or not, according to the subject-matter and the nature of the contract and the conduct of the parties. See Sugd. Vend. 260 et seq.

If the parol variation has been acted upon by tion partly

either party, so that to allow the other to insist on the original contract would be to sanction a fraud, the principle discussed, ante, p. 351, comes into operation, and specific performance of the contract, as varied, may be enforced in equity. Thus, in an Anonymous case in Viner (Contract, H. 38), W. leased a house to N. for eleven years, and by the written agreement was to allow 201. to be laid out in repairs; N. repaired the house, and finding it to take a much greater sum than 201., offered to W. to go on, and lay out more money, if he would enlarge the term to twenty-one years, or add fourteen, or as many as N. should think fit. W. replied that they would not fall out about that, and afterwards declared that he would enlarge the term, without mentioning any certain term. The Master of the Rolls said, that,

Parol varia

acted upon

may be

a

enforced.

a

of a Written

Contract.

before the statute, written agreements could not be Parol Waiver controlled by a contemporaneous parol agreement contrary to it, or altering it; but this was a new agreement, and the laying out the money was a performance on one part, and ought to be carried into execution; and he built his decree upon two cases; first, where a parol agreement was for a building lease, and before it was reduced into writing the lessee began to build, and after differing on the terms of the lease, the lessor brought a bill, and the lessee insisted on the Statute of Frauds; the Lord Keeper dismissed the bill, but the plaintiff was relieved in Dom. Proc.; and the second was a case in Lord Jefferies' time.

So, in Legal v. Miller, 2 Ves. sen. 299, the written Legalv. Miller. agreement being that the lessor should repair, and it being found that it would be better to pull the house down entirely, though more expensive to the owner, it was agreed by parol that that should be done, the tenant paying an additional rent. This was allowed to be a good defence to a bill by the tenant for a specific performance according to the written agreement. See Earl of Anglesey v. Annesley, 4 Br. P. Č. 421; Price v. Dyer, 17 Ves. at p. 364. And, in Van v. Corpe, 3 My. & K. 269, in answer Van v. Corpe. to a bill seeking specific performance of an agreement for a lease, the defendants set up a subsequent parol agreement, that, in consideration of certain alterations being made in the premises by the defendants, the plaintiff would execute a lease containing a covenant against carrying on certain trades, which was not provided for by the written agreement; and Sir J. Leach, M. R., held, that if that were proved, being made upon valuable consideration, the plaintiff would be bound by it as well as the defendants.

Lastly, as to the total abandonment by parol of Whether a a contract within the Statute of Frauds. In Back- within the house v. Crosby, 2 Eq. Ab. 32; 3 Swan. 434, the statute may evidence of an alleged parol waiver of an agree- by parol. ment for the purchase of land was considered in- Backhouse v. conclusive; and the Lord Chancellor said, that he Crosby. would not say that a contract in writing could not

be abandoned

of a Written

Contract.

Goman v.

Davis v.

Parol Waiver be waived by parol, yet he should expect in such a

case a very clear proof; and the proof in the present
case he thought very insufficient to discharge a con-
tract in writing; and observed, that the Statute of
Frauds requires that all contracts and agreements
concerning land should be in writing. Now, an
agreement to waive a purchase contract is as much
an agreement concerning lands as the original con-
tract. However, there was no occasion then to

determine that point. In Goman v. Salisbury, 1 Salisbury.

Vern. 240, a bill to have a written agreement exe-
cuted in specie was dismissed, on the ground of a
subsequent parol discharge. See Pitcairn v. Ogbourne,
2 Ves. sen. 375; Inge v. Leppingwell, 2 Dick. 469;
Robson v. Collins, 7 Ves. 130. Lord C. B. Eyre, in

Davis v. Symonds, 1 Cox, at p. 406, said: “That
Symonds.

certainly a waiver of a contract concerning lands
may be by parol; the waiver is in its own nature
subsequent to, and necessarily collateral to the
agreement, and therefore can never bear any rela-
tion to the rule of evidence excluding parol contem-
poraneous variations of a writing. There might,
indeed, have been another rule, that a written in-
strument shall not be waived by parol; but, in fact,
courts of equity do not consider themselves as bound

by any such rule; and it is now clear that a written Price v. Dyer. agreement may be waived." In Price v. Dyer, 17

Ves. at p. 363, Sir W. Grant, M. R., said, that, as
at present advised, he inclined to think that a parol
waiver, clearly and satisfactorily proved, would be
a ground for refusing to enforce performance of a
written contract respecting lands. And this dictum
was recognized by Sir J. S. Copley, M. R., in the
case of Robinson v. Page, 3 Russ. 119, who observed
that, undoubtedly, waiver even by parol would be
a sufficient answer to a bill asking performance of a
written contract. But it had been laid down in all
the cases, that such a defence must be established
with clearness and precision, and the circumstances
of waiver and abandonment must amount to a total
dissolution of the contract, placing the parties in the
same situation in which they stood before the agree-
ment was entered into.

1

Robinson v.
Page.

of a Written

Contract.

Noble v. Ward.

In the case of Noble v. Ward, L. R., 1 Ex. 117 Parol Waiver (affirmed on appeal, L. R., 2 Ex. 135), where there was a contract in writing for the sale of goods to be delivered within a special time, and subsequently a parol agreement was entered into for extension of the time for delivery, it was held that the subsequent parol agreement was not “good” for any purpose within the meaning of sect. 17 of the Statute of Frauds, and could not operate either as a rescission of the original written contract, or as a new. contract for the sale of goods, and that the original written contract might be enforced. Bramwell, B., remarked in the judgment, “The cases of Goss v. Lord Nugent, Stead v. Dawber, and others, only show that the new contract cannot be enforced, not that the old one is gone." See also Moore v. Campbell, 10 Ex. 323; S. C., 23 L. J., Ex. 310.

Sect. 2.-Of Stamps on Agreements. The Stamp, Act, 1870 (33 & 34 Vict. c. 97), by which the older Acts are superseded, imposes the following duties on agreements (r), not being agreements for a lease or mortgage (see schedule to the Act):

" AGREEMENT or CONTRACT made or entered into pursuant to the Highway Acts for or relating to the making, maintaining or repairing of highways, 6d.

" AGREEMENT or any MEMORANDUM of an AGREEMENT made in England or Ireland under hand only, or made in Scotland without any clause of registration, and not otherwise specifically charged with any duty, whether the same be only evidence of a contract or obligatory upon the parties from its being a written statement, 6d.

" Exemptions. "(1) Agreement or memorandum the matter whereof is not of the value of 51.

“(2) Agreement or memorandum for the hire of any labourer, artificer, manufacturer, or menial servant.

“(3) Agreement, letter, or memorandum made for, or relating to, the sale of any goods, wares, or merchandize.

"(4) Agreement or memorandum made between the master

(r) As to stamps on agreements for leas post, sub, tits. LEASES, MORTGAGES.

and mortgages, vide

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