More difficult questions are presented when the subsequent oral agreement does not purport totally to rescind but only to vary some of the terms of an original bargain, which was within the Statute of Frauds and of which a memorandum had been made. It seems clear on principle that no right of action can lie for breach of the second agreement unless the second agreement is a complete contract itself and not within the statute.17 For instance, the original contract may have been not performable within a year, but the subsequent oral agreement may relate to a matter which can be performed within a year.18

An action on the first and second agreements combined is open to the same objection as an action on the second agreement alone. To allow a right of action in either case would be to enforce a contract within the statute when some terms at least of the contract were oral.19 On the other hand, if the agreement as orally modified has been performed, such performance operates (subject to the requirements of consideration, applicable to all agreements of accord and satisfaction), as a satisfaction of the liability on the original contract. The Statute of Frauds does not apply to fully executed contracts, so that when the oral agreement has been performed its performance has the effect which the parties agreed it should have.20 If the varied agreement has been partly performed, the question must be asked whether the remaining performance is within the statute and if so whether the part performance which has taken place will satisfy the statute. If these questions can be answered in the affirmative there is no difficulty.21

14 Supra, Sec. 491, ad fin.

+Burns v. Fidelity Real Estate Co., 52 Minn. 31, 36, 53 N. W. 1017; Warren v. Mayer Mfg. Co., 161 Mo. 112, 122, 61 S. W. 644; Long v. Hartwell, 34 N. J. L. 116; Miller v. Pierce, 104 N. C. 389, 10 3. E. 554; Jones v. Booth, 38 Ohio St. 405; Phelps v. Seely, 22 Gratt. 573; Jordan v. Katz, 89 Va. 628, 630, 16 8. E. 866.

16 See supra, Sec. 494.

17 Odell v. Barton, 249 Fed. 604, 161 C. C. A. 530; Koeenfcld v. Standard

Bottling & Extracts Co., (Mass. 1919), 122 N. E. 299, and see cases cited infra, n. 19.

18Williams v. Moss' Empires, Ltd., [1915] 3 K. B. 242; Blake v. J. Neils Lumber Co., 111 Minn. 513, 127 N. W. 450. See also Blumenthal v. Blooming-dale, 100 N. Y. 558, 3 N. E. 292. The criticism in Morris v. Baron, [1918] A. C. 1, 25, 26, of the decision of this point in Williams v. Moss' Empires, Ltd., seems ill founded.

19Stead v. Dawber, 10 A. & E. 57 (overruling Cuff v. Peiin, 1 M. & S.21); Marshall v. Lynn, 6 M. & W. 100; Noble p. Ward, L. R. 1 Ex. 117; Morris p. Baron, [1918] A. C. 1; Emerson v. Slater, 22 How. 28, 42, 16 L. Ed. 360; Swain p. Seamens, 9 Wall. 254, 272, 19 L. Ed. 554; Pearsall v. Henry, 153 Cal. 314,95 Pac. 154; Jarman v. Westbrook, 134 Ga. 19, 67 S. E. 403; Carpenter p. Galloway, 73 Ind. 418; Bradley v. Batter, 156 Ind. 499, 60 N. E. 139; Williams v. Robinson, 73 Me. 186, 40 Am. Rep. 352; Walter v. Victor G. Bloede Co., 94 Md. 80, 50 Atl. 433; Cummings v. Arnold, 3 Mote 486, 491, 37 Am. Dec 155; King v. Faist, 161 Mass. 449, 456, 37 N. E. 456; Abel v. Munson, 18 Mich. 306, 100 Am. Dec. 165; Brown d. Sanborn, 21 Minn. 402; Hetaley v. Swanstrom, 40 Minn. 196, 41 N. W. 1029; Burns v. Fidelity Real Estate Co., 52 Minn. 31,53 N. W. 1017; Thompson p. Thompson, 78 Minn. 379, 81 N. W. 204, 643; Grand Forks Lumber Co. v. McClure Logging Co., 103 Minn. 471, 115 N. W. 406; Blake v. J. Neils Lumber Co., 111 Minn. 513, 127 N. W. 450; [cf. McDonald p. Union

Hay Co. (Minn), 172 N. W. 891]; Rucker v. Harrington, 52 Mo. App. 481; Warren v. Mayer Mfg. Co., 161 Mo. 112, 61 S. W. 644; Blood v. Goodrich, 9 Wend. 68, 24 Am. Deo. 121; Ladd v. King, 1 R. I. 224, 51 Am. Dec. 624; Dana v. Hancock, 30 Vt. 616; Thompson p. Robinson, 65 W. Va. 506, 64 S. E. 718; Hanson p. Gundereon, 96 Wis. 613, 70 N. W. 827. As to con--tracts not to be performed within a year, see supra, Sec. 503.

20Moore p. Campbell, 10 Ex. 323; Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140; Swain p. Seamens, 9 Wall. 254, 19 L. Ed. 544; Blake p. J. Neils Lumber Co., 111 Minn. 513,127 N. W. 450; Long v. Hartwell, 34 N. J. L. 116, 127; Jackson v. Liter,, 62 Pa. St. 451; Ladd p. King, 1 R. I. 224, 231, 51 Am. Dec 624. Cf. Dana v. Hancock, 30 Vt. 616.

21 Thus in a contract for the sale of goods if there has been part payment or acceptance and actual receipt of part of the goods after an oral variation of a written agreement, the whole agreement in its varied form is enforceable. Kribs v. Jones, 44 Md. 396; Sedro

If the terms of the oral agreement have not been performed, the original contract generally at least must be held to remain in force. Though an oral agreement to rescind without more would be effectual (unless the original contract created an interest in land) 22 where the rescission is to be effected only as part of an entire agreement to substitute a new contract differing in some of its terms from the old one, there can be no rescission if the agreement as a whole is invalid.23 It is true that the House of Lords on elaborate consideration has reached a different conclusion 24 qualifying what had been generally regarded as the effect of a previous decision.25 A written agreement signed by one party only was agreed upon, as the court found, as full satisfaction of claims under a previous written contract for the sale of goods, signed by both parties. The new agreement, though unenforceable by the party who had signed it was held to bar any claims by him on the original contract. In the opinions of the several Lords the idea seems predominant that the second agreement was a valid contract though unenforceable by action and therefore had the intended effect of rescinding the original contract. It may be admitted that the second agreement was merely unenforceable, but the parties can hardly be supposed to have intended to surrender their original rights except on the assumption that the new agreement was enforceable. It may be said that this was merely a mistake of law and should be disregarded; but the law should not allow advantage to be taken of such a mistake to enforce in effect (though not by action) merely a part of an entire contract. If the original contract was to guarantee a certain debt, and the subsequent oral variation was to guarantee another debt instead of that to which the written memorandum related, can it be admitted that thereby the promisee is deprived of any guarantee?

Veneer Co. v. Kwapil, 62 Wash. 386, 113 Pac. 1100. So if there has been put payment. Packer v. Steward, 34 Vt. 127. In Dawson v. Yates, 1 Beav. 361, payment for an extension of time orally agreed upon as a variation of written contract for the sale of land was held to preclude forfeiture according to the terms of the writing.

See also Olley v. Fisher, 34 Ch. D. 367.

22See supra, Sec.Sec. 491, 592.

23 Noble p. Ward, L. R. 2 Ex. 135; Hasbrouck v. Tappen, 15 Johns. 200; Barton v. Gray, 67 Mich. 622, 632, 24 N. W. 638.

24 Morris v. Baron, [1918] A. C. 1.

25 Noble v. Ward, L. R. 2 Ex. 135.

Sec. 694. Amount Of Variation

No distinction is taken in the cases between large changes from the original agreement and slight ones, such as the extension for a brief period of the time for performance. The validity of such a distinction has been explicitly denied.26 "Every part of the contract in regard to which the parties are stipulating must be taken to be material." 27