The difficulty in dealing with the situation seems generally to have arisen from the pleading. If the plaintiff sues on the oral contract or on the written and oral contracts combined, he cannot prove the case upon which he has declared. He must therefore declare on the written contract. It follows that the defendant can never be held liable for failing to do anything except what he undertook by promises stated in the written memorandum, though performance of what either of the parties so promised may be excused by matter in pais. The time of performance, however, is not regarded as a part of the description of the thing promised, even though time is material. An excuse for performing on time does not excuse altogether.31 Therefore, a defendant who promised in writing to convey Blackacre on April 1st and who from one cause or another is excused from performing during that month may be held liable on his promise if he fails to convey on May 1st. Accordingly, if when sued on the promise as written, the defendant pleads the plaintiff's failure to pay or tender on April 1st, the plaintiff may reply that he would have made such payment or tender had not the defendant caused him to delay in bo doing until May 1, on which day he made tender.

1 Ohio, 261. See also Kinack v. Bourke, 224 111. 352, 76 N. E. 619; Scott v. Hubbard, 67 Or. 498, 136 Pac. 663; Whiting v. Doughton, 31 Wash. 327, 71 Pac. 1026. But see Jarman v.

Westbrook, 134 Ga. 19, 67 S. E. 403.

30 L. R. 2 Q. B. 275, L. R. 3 Q. B. 272.

31 See infra, Sec. 845.

Sec. 698. Parol variation no protection to one who would not otherwise have performed. Where the extension of time or other variation of the contract is requested by one party because of his inability to perform the contract according to its terms, or in any case where he would have been thus unable, an agreement by the other party permitting an extension or variation cannot be said to be the cause of the failure to perform the contract according to its original terms. Here, if the party guilty of non-performance is allowed to recover or is protected from liability on the original obligation because of his readiness and willingness to perform the extended or varied contract, he is relying merely on a voluntary permission or on an oral contract within the statute. There is no equity forbidding the statute to be set up under these circumstances.32 The situation is not different in its hardship from that which arises when an oral contract within the statute is denied enforcement.

Sec. 599. Variation of contracts within the statute - Massachusetts doctrine. A few decisions go beyond the principles stated in the preceding sections, and give effect to an oral variation of a written contract within the statute although one party by means of the oral agreement may not have been the cause of the other party's failure to perform the contract as written. In an early case,33 the Supreme Court of Massachusetts adopted a distinction that was suggested by Lord Ellenborough in an English decision34 which was soon thereafter repudiated in England,35 between the contract and its performance. "The statute," Wilde, J., said, "requires a memorandum of the bargain to be in writing, that it may be made certain; but it does not undertake to regulate its performance." The court then proceeded to argue that as a substituted performance would operate as a satisfaction of the original contract, and that as tender is equivalent to performance, the plaintiff could sue on the original contract and prove in support of it an offer to perform with the alterations later agreed upon. But the sounder view even in the case of a binding contract of accord, is that tender is not equivalent to performance, and there is no satisfaction even if the tender is wrongfully refused.36 However this may be, a tender where there is no obligation to accept it cannot possibly have the effect of performance. The learned author of the leading text-book on the subject37 gives his approval to the decision, but the current of authority seems strongly against it.

32 Stowril v Robinson, 3 Ring. N. C. 028; Noble v. Ward, L. R. 2 Ex. 135; Pterins v. Downing, 1 C. P. D. 220; Swain v. Seamens, 9 Wall. 254, 271, 16 L. Ed. 564; Lawyer v. Post, 109 Fed. 512, 47 C. C. A. 491; Piatt v. Butcher, 112 Cal. 634, 44 Pac. 1060; Bradley v. Harter, 156 Ind. 499, 60 N. E. 139; Walter v. Victor G. Bloede Co., 94 Md. 80, 60 Atl. 433; Rucker v. Harrington, 52 Mo. App. 481; Warren v. Mayer Mfg. Co., 161 Mo. 112, 61 8. W. 644; Haabrouck v. Tappen, 15 Johns. 200; Clark v. Fey, 121 N. Y.

470, 24 N. E. 703; Clark v. Guett, 54 Ohio St. 298, 43 N. E. 862; Thompson v. Robinson, 65 W. Va. 506, 64 S. E. 718. See also Dana v. Hancock, 30 Vt. 616, and infra, Sec. 090.

33 Cumminga v. Arnold, 3 Metc. 486, 37 Am. Dec. 155. The defendant had agreed to sell goods on eight months' credit and a written memorandum was made. Subsequently there was an oral agreement that the goods should be paid for in cash. The defendant thereafter refused to deliver on credit, and on being sued was held justified.