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 question frequently presented for decision is to what extent does the later contract abrogate the earlier contract. If the later contract expressly abrogates the earlier contract, it abrogates it in toto unless some restriction is made in the later contract, preventing such total abrogation.1 If the later contract does not expressly abrogate the earlier in toto, but is inconsistent therewith, the scope of the later contract determines whether any part of the earlier contract is in force. If the later contract between the parties covers the same subject-matter and has the same scope as the earlier contract, but is in whole or in part inconsistent therewith, the later contract abrogates the earlier contract in toto and is the only contract upon the subject between the parties.2 Thus an oral agreement to convey or devise land, even if otherwise enforceable is avoided by the promisee's accepting a subsequent lease of such land, inconsistent with his rights under such contract.3 An option to buy the fee is not as a matter of law, however, surrendered by taking a lease upon such realty.4 A agreed with B, a street railway company, to construct iron work and appliances for certain curves, at a certain rate per foot. Subsequently, by mutual agreement, the parties changed the weight of the iron to be used, and modified the specifications so as to make one curve where there had before been three. The distance was thus lengthened. It was held that in the absence of an express agreement to the effect that the same price per foot was to be paid, that such contract abrogated the original contract as to the rate per foot which A was to receive.5 A contract between a municipal corporation and a street railway company by which a certain rate of fare to be charged by a railway company is agreed upon, and the railway company assumes a liability for paving a certain place along its tracks, for which it was not before liable, and agrees to charge but one fare for transportation over its whole line, whereas, before it was entitled to charge in some cases more than one fare, abrogates the original contract between such railway company and city, fixing the rate of fare and reserving to the city the right to make subsequent changes in such rates.6 A contract for the sale of a certain number of tons of cotton seed at a certain price, is abrogated by a new contract between the parties for the sale of a less number of tons at an increased price.7 If a new contract is entered into between the parties, upon the same subject-matter, as an alleged prior contract, it has been held that the protest of one of the parties, claiming rights under such alleged prior contract, does not prevent the new contract from abrogating the earlier one.8 So if a contract is rescinded when only partly performed, and a new contract entered into to pay for the work done, such contract abrogates a provision of the earlier contract as to the time of payment.9 A new contract for construction abrogates a provision in a prior contract providing that the engineer's decision upon certain matters should be final.10 However, a subsequent contract modifying only the grade of work to be done has been held to leave in full force such a provision as to the power of the engineer.11 If the new contract covers a subject-matter which is only in part the same as that covered by the old contract, the new contract abrogates the old only in so far as it is inconsistent therewith.12 Modifications in a building contract do not abrogate it entirely, as long as the alterations and changes leave it possible to follow the original contract.13 A contract for erecting a mill provided that the foundations should be laid in cement and mortar, except the foundations for machinery which should be laid in Portland cement. The walls were to be laid in lime mortar, except certain cappings which were to be in Portland cement. A subsequent modification of the contract substituted Louisville cement for Portland cement in all the brick work except the machinery foundations and the cappings. It was held that this change referred only to the kind of cement to be used, and did not affect the contract as to the amount of brick which was to be laid in cement.14 A contract providing for making certain changes in the construction of a furnace, does not abrogate an earlier contract between the same parties, whereby one agrees to sell such furnace to the other.15 A agreed to make a machine for B, according to certain plans and specifications. There was no guaranty that the machine would do the work for which it was intended. Subsequently, the parties found that some of the plans and specifications were imperfect, and A agreed to examine the drawings and specifications and correct them if there was anything imperfect or defective therein. It was held that the new agreement did not amount to a warranty that the machine would do the work for which it was made.16 A contract in writing for grading a street, in which the employer reserves the right to decide how much work is to be done, and to stop the work at any time, is not abrogated by a subsequent request by the employer that the contractor should increase his working force to such number of men as could complete the grading within a certain time. The employer may subsequently exercise his right to stop the work.17 B bought A's poultry and grocery business, and A agreed not to engage in the poultry business while B remained therein. Subsequently, A bought some real estate and B's poultry business, and B agreed not to engage in the poultry business in a certain territory for a specified time. It was held, that the latter contract did not merge the earlier one.18 An author and publisher made a contract, fixing the quality of the books to be published, and the price therefor. A subsequent oral modification as to the first edition will not abrogate the written contract as to subsequent editions.19 Two contracts, of different dates, which are not inconsistent each with the other, and one of which appears to be in part performance of the other, are to be enforced together. The second does not abrogate the first.20 A modification which merely extends the time for performance leaves the remaining provisions in full force.21 In order to operate as a discharge or modification of an earlier contract, the new contract must appear to have been so intended. A new contract of equal degree with an earlier one, and upon the same subject-matter, will not abrogate or merge the earlier contract, if the parties make an express agreement that it shall not so operate.22 So a new contract intended to confirm and ratify a prior contract cannot operate as a discharge thereof.23 So a building contract is not abrogated by the owner's making payments direct to the laborers and material men, with the consent of the contractor.24 As far as the later contract is inconsistent with the earlier contract, however, it thereby abrogates and supersedes it.25 A employed B for a term of years for a compensation, which was to be a certain per cent of the profits. B was not to draw out his profits unless with A's consent. Subsequently, B assigned to X the amount of the profits belonging to B for the first year, and A assented thereto, and promised to pay such amount to X. Such new contract was held to abrogate that part of the original contract, giving A the option to retain such profits in the business until the end of the contract and the right to set off against such profits any damage for B's subsequent violation of the contract.26 A sold B land for a certain sum down and the balance due in three installments. B was to have the option of avoiding the contract before the first installment became due and forfeiting the amount paid down. Subsequently A extended the time for paying the first installment. This was held to extend the time within which B could avoid the sale.27
19 Pease v. McQuillin, 180 Mass. 135; 61 N. E. 819. zopeake v. New Orleans, 139 U. S. 342; School District v. Thomas, 51 Neb. 740; 71 N. W. 731.
1 Union, etc., Co. v. Johnson, 72 Fed. 147; 18 C. C. A. 490; De Bau-mont v. Webster, 71 Fed. 226; Hutchinson v. Holmes Sanitarium, 93 Wis. 23; 66 N. W. 700.
2 Patmore v. Colburn, 1 Cromp. M. & R. 65; Penman Mfg. Co. v. Broad-head. 21 Can. S. C. 713; Housekeeper Publishing Company v. Swift, 97 Fed. 290; 38 C. C. A. 187; Bourn v. Dowdell (Cal.), 50 Pae. 695;
Harrison v. Polar Star Lodge, 116 111. 279; 5 N. E. 543; Stow v. Russell, 36 111. 18; MeDonough v. Kane, 75 Ind. 181; Paul v. Meservey, 58 Me. 419; Howard v. Railroad Co., 1 Gill (Md.) 311; Tuggles v. Cal-lison, 143 Mo. 527; 45 S. W. 291; Chrisman v. Hodges, 75 Mo. 413; McCreery v. Day, 119 N. Y. 1; 16 Am. St. Rep. 793; 6 L. R. A. 503; 23 N. E. 198; Renard v. Sampson, 12 N. Y. 561; Spreckel v. Bender, 30 Or. 577; 48 Pac. 418; Burke v. Purifoy. 21 Tex. Civ. App. 202; 50 S. W. 1089.
3 Harmon v. Harmon, 51 Fed. 113; Unger v. Unger, 65 0. S. 495; 63 N. E. 67.
4 Wade v. Oil Co., 45 W. Va. 380; 32 S. E. 169.
5 Marshall, etc., Co. v. Traction Co.. 138 Pa. St. 266; 22 Atl. 23.
6 Cleveland City Ry. v. Cleveland, 94 Fed. 385.
7 Consumers' Cotton-Oil Co. v. Ashburn, 81 Fed. 331. (The new contract was made after the vendor had repudiated his original contract to sell at a lower price.)
8 United States v. Lamont, 155 U. S. 303.
9 South End Improvement Co. v. Harden (N. J. Eq.), 52 Atl. 1127.
10 Chicago, etc., Ry. v. Moran, 187 111. 316; 58 N. E. 335; affirming 85 111. App. 543; Galveston v. Devlin, 84 Tex. 319; 19 S. W. 395.
11 McCauley v. Keller, 130 Pa. St. 53; 17 Am. St. Rep. 758; 18 Atl. 607.
12 Alferitz v. Ingalls, 83 Fed. 964; Welch v. Allington, 23 Cal. 322; Crary v. Bowers, 20 Cal. 86; Griffith v. Grogan, 12 Cal. 317; Mc-
Dale v. Kingsley, 163 111. 433; 45 N. E. 281; North v. Mallory, 94 Md. 305; 51 Atl. 89; Perkins Oil Co. v. Eberhart, 107 Tenn. 409; 64 S. W. 760; Pike v. Pike, 69 Vt. 535; 38 Atl. 265.
13 Hood v. Smiley, 5 Wyom. 70; 36 Pac. 856.
14 Perkins Oil Co. v. Eberhart, 107 Tenn. 409; 64 S. W. 760.
15 Uhlig v. Barnum, 43 Neb. 584; 61 N. W. 749.
16 Johnson v. Freemann, 160 Pa. St. 317; 28 Atl. 780.
17 Beers v. Town Site Co., 97 Wis. 212; 72 N. W. 870.
18 Adams v. Adams, 160 Ind. 61; 66 N. E. 153.
19Keely v. Hartranft, 178 Pa. St. 384; 35 Atl. 984.
20 Rhoades v. Ry.. 49 W. Va. 494; 55 L. R. A. 170; 39 S. E. 209.
21 Underwood v. Wolf, 131 111. 425; 19 Am. St. Rep. 40; 23 N. E. 598.