8See Emery v. Boston Terminal Co., 178 Mass. 172, 59 N. E, 763, 86 Am. St. Rep. 473.
9The leading case is Felthouse v. Bindley, 11 C. B. (N. S.) 889. In that case the seller of a horse by an oral sale put up property, including home in question, at auction, and the hone, together with the other property, was sold by the auctioneer. Subsequently the seller wrote a letter to the first buyer which was assumed by the court to be a sufficient memorandum of the oral bargain. The buyer, under the oral bargain, sued the auctioneer for conversion, and it was held that he could not recover. See to the same effect Bird p. Munroe, 60 Me. 337, 22 Am. Rep. 871; Emery v. Boston Terminal Co., 178 Mass. 172, 69 N. E. 763, 86 Am. St. Rep. 473. It would seem in Felthouse v. Bindley, the plaintiff might have successfully maintained action against the seller, though he could not sue the auctioneer; nor, the buyer at the auction sale. Shorten v. Thompson, 96 Mo. App. 327, 70 & W. 256. See further, supra, Sec. 529.
into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make a new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement." 10 It is also true that if the agreement to discharge or vary a contract is made after its breach, it is equally immaterial whether the original bargain was or was not in writing. The latter agreement is an accord, and if the parties so intend will operate at once without performance to discharge the liability for breach of the original contract.11