This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A contract within the statute of frauds, complying with its requirements, cannot, according to the weight of authority, be modified subsequently by an executory oral agreement so as to make a new contract of such sort that it would itself be within the statute; since this would leave the contract part in writing and part oral.1 Thus an oral extension of the time of performance,2 as of a contract for the sale of realty,3 such as a contract for the sale of growing timber,4 or an oral agreement including a new subject-matter,5 or a modification providing for payment for realty by the conveyance of other realty instead of in money as required by the original contract,6 are none of them enforceable. But an oral agreement for the extension of time has been enforced so as to prevent a forfeiture for nonpayment within the time originally limited.7 The original contract is enforceable disregarding the oral modifications.8 On the other hand if an oral modification of a contract within the statute is completely performed, this constitutes a discharge of the original contract.9 Thus, an oral modification of a con-
1 Hickman v. Haynes, L. R. 10 C. P. 598; Marshall v. Lynn, 6 Mees. & W. 109; Swain v. Seamans, 9 Wall. (U. S.) 254; Snow v. Nelson, 113 Fed. 353; Lawyer v. Post, 109 Fed. 512; 47 C. C. A. 491; Platt v. Butcher, 112 Cal. 634; 44 Pac. 1060; Smith v. Taylor, 82 Cal. 533; 23 Pac. 217; Augusta Southern R. R. Co. v. Kilby Co., 106 Ga. 864; 33 S. E. 28; Bradley v. Har-ter, 156 Ind. 499; 60 N. E. 139; Davis v. Parish, Litt. Sel. Cas. (Ky.) 153; 12 Am. Dec. 287; Walter v. Bloede Co., 94 Md. 80; 50 Atl. 433; Whittier v. Dana, 10 All. (Mass.) 326; Abell v. Munson, 18 Mich. 306; 100 Am. Dec. 165; Warren v. Mfg. Co., 161 Mo. 112; 61 S. W. 644; Bullis v. Mining Co., 75 Tex. 540; 12 S. W. 397; Saveland v. Ry., 118 Wis. 267; 95 N. W. 130.
Atlee v. Bartholomew, 69 Wis. 43; 5 Am. St. Rep. 103; 33 N. W. 110.
2 McConathy v. Lanham, - Ky. -; 76 S. W. 535; Bullis v. Mining Co., 75 Tex. 540; 12 S. W 397.
3 Lawyer v. Post, 109 Fed. 512; 47 C. C. A. 491; Platt v. Butcher, 112 Cal. 634; 44 Pac. 1060.
4 Clark v. Guest, 54 O. S. 298; 43 N. E. 862.
5 Clark v. Fey, 121 N. Y. 470; 24 N. E. 703; Saveland v. Ry., US Wis. 267; 95 N. W. 130.
6 Bradley v. Harter, 156 Ind. 499; 60 N. E. 139.
7 Scheerschmidt v. Smith, 74 Minn. 224; 77 N. W. 34.
8 Sanderson v. Graves, L. R. 10 Exch. 234.
9 Hickman v. Haynes, L. R. 10 C. P. 598; Whittier v. Dana, 10 All. (Mass.) 326; Cummings v. Artract concerning realty, with reference to the number of lots to be sold,10 or the size of the mill to be constructed on the realty,11 if fully performed and performance is accepted, is itself valid, and merges the prior contract. Some cases go still farther and, on the theory that the statute does not affect performance,12 allow an oral executory modification of that part of the contract which does not bring it within the statute of frauds, to have full validity itself and to operate as a bar to that part of the original contract.13 Thus, an oral extension of the time of paying the purchase price of realty contracted for in writing has been held valid if made before the expiration of the time fixed by the original contract.14 This rule has been based on the doctrine of estoppel.