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.
In equity a contract under seal might be discharged or modified by a subsequent oral contract not under seal.1 The place of performance,2 or the time for performance, of a contract under seal, may be changed by a subsequent oral contract.3 Where law and equity are both administered by the same court and often in the same action, the equity rule permitting the discharge of contracts under seal by subsequent oral executory contracts has been extended to actions at law.4 The practical result of the adoption by the common law of the theories of equity, and of legislation which permits equitable defenses to be made at law, is that in most jurisdictions a sealed contract may be discharged or modified by a subsequent simple contract,5 even though such simple contract is still executory.6 A leased a store building to B by a written lease of ten years, at forty-five hundred dollars a year. After the first year, A and D made an oral agreement that the rent was to be reduced to thirty-five hundred dollars for three years. B paid his rent at that rate, and A gave receipts in full. It was held that the oral agreement was of no effect if A chose to avoid it, but that as to the time for which he had received such rent, and given receipts in full, the agreement was binding, and A could not subsequently recover the difference between the original rental and that fixed by the new agreement.7 If a sealed contract contains a provision that no part of such contract shall be sublet, such provision may subsequently be waived orally.8 If a deed of trust provides that the trustee shall sell the mortgaged property at a specified place, and at the request of the mortgagor the mortgagee consents to sell it at a different place, such oral modification as to the place of sale may be shown in an action brought by the mortgagor to recover possession of the property from the purchaser.9
5 Waberly v. Cockerel, 1 Dyer 51a.
6 Illinois. Worrell v. Forsyth, 141 UK 22, 30 N. E. 373; Jones & Dommers-nas Co. v. Crary, 234 111. 26, 84 N. E. 651 [affirming, Crary v. Jones & Dom-meronas Co., 138 111. App. 235],
Massachusetts. Drury v. Improvement Co., 95 Mass. (13 All.) 168.
Minnesota. Siebert v. Leonard, 17 Minn. 433; McClay v. Gluck, 41 Minn. 193, 42 N. W. 875.
New York. McCreery v. Day, 119 N. Y. 1, 16 Am. St. Rep. 793, 6 L. R. A. 503, 23 N. E. 198.
North Carolina. Davis v. Inscoe, 84 N. Car. 396.
Ohio. Reed v. McGrew, 5 Ohio Rep. 375.
Virginia. Bonsack Machine Co. v. Woodrum, 89 Va. 512, 13 S. E. 994.
West Virginia. Arbogast v. Mylius, 55 W. Va. 101, 46 S. E. 809.
7 Snow v. Griesheimer, 220 111. 106,
77 N. E. 110; Jones & Dommersnas Co. v. Crary, 234 111. 26, 84 N. E. 651 [affirming judgment, Crary v. Jones & Dommersnas Co., 138 111. App. 225]; Arbogast v. Mylius, 56 W. Va. 101, 46 S. E 809.
8 May v. Taylor, 6 M. & G. 261; Suy-dam v. Jones, 16 Wend. (N. Y.) 180, 25 Am. Dec. 552 (obiter).
1 Webb v. Hewitt, 3 K. & J. 438. See discussion in Nash v. Armstrong,
10 C. B. (N.S.) 259.
Contra, but probably as to law only, Braddick v. Thompson, 8 East 344.
2 Kelly v. Skates, 117 Miss. 886, 78 So. 945.
3 Tompkins v. Tompkins, 21 N. J. Eq. 338; Bigelow v. Rommelt, 24 N. J. Eq. 115; Von Syckel v. O'Hearn, 50 N. J. Eq. 173, 24 Atl. 1024.
4 Thus in speaking of the common-law rule the court said: "The application of this rule often produced great inconvenience and injustice, and the rule itself has been overlaid with distinctions invented by the judges of the common-law courts to escape or mitigate its rigor in particular cases. But in equity the form of the new agreement is not regarded, and under the recent blending of the jurisdictions of few and equity, and the right given by the modern rules of procedure in this country and in England to interpose equitable defenses in legal actions, the common-law rule has lost much of its former importance. * * * It is a necessary consequence of our changed system of procedure that whatever formerly would have constituted a good ground in equity for restraining the enforcement of a covenant or decreeing its discharge, will now constitute a good equitable defense in an action on the covenant itself." McCreery v. Day,
119 N. Y. 1, 7, 16 Am. St. Rep. 793, 6 L. R. A. 503, 23 N. E. 198.
5 England. Steeds v. Steeds, 22 Q. B. D. 537.
United States. Canal Co. v. Ray, 101 U. S. 522, 25 L. ed. 792.
Massachusetts. Tuson v. Crosby, 172 Mass. 478, 52 N. E. 744.
Pennsylvania. McCauley v. Keller, 130 Pa. St. 53, 17 Am. St. Rep. 758, 18 Atl. 607.
6 Ryan v. Dunlap, 17 111. 40, 63 Am. Dec. 334; Adams v. Battle, 125 N. Car. 152, 34 S. E. 245; McCauley v. Keller, 130 Pa. St. 53, 17 Am. St. Rep. 76$, 18 Atl. 607.
7McKenzie v. Harrison, 120 N. Y. 260, 17 Am. St. Rep. 638, 8 L. R. A. 257, 24 N. E. 458.
8 Gannon v. Shepard, 156 Mass. 356, 31 N. E. 296.
9 Kolly v. States, 117 Miss. 886, 78 So. 945.
Unless the difficulties created by common-law rules of pleading persist, an action may be brought at modern law upon a contract which is made up of the original contract under seal, and an unsealed modification thereof.10
If the parties have entered into a contract under seal, they may subsequently enter into an oral contract upon a different subject-matter, and the validity of such oral contract will not be affected by the fact that the original contract was under seal, even though the subsequent contract is collateral to the Original contract.11 Thus A and B entered into a sealed contract, whereby A conveyed his interest in partnership property to B. It was subsequently discovered that certain property had been omitted from such instrument. A subsequent oral contract between A and B conveying such omitted property is valid.12 If A and B have entered into a cropping lease for every other year, a subsequent oral contract with reference to a crop to be raised in an intervening year is enforceable.13
Where common-law rules of pleading persist, covenant will not lie upon an unsealed modification of a sealed contract, even if the new contract has been performed.14