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.
Complete performance is held to withdraw the contract from the operation of the statute,1 and accordingly a complete performance of an oral modification of a contract within the Statute of Frauds is held to operate as a discharge of the original contract.2 An oral modification of a provision in a contract for the sale of realty with reference to the land to be conveyed, operates as a discharge of the original contract if such oral modification has been fully performed, and if such performance has been accepted by the adversary party.3
Technical part performance prevents the operation and effect of the Statute of Frauds, at least in equity.4 Accordingly, an oral modification of a written contract, within the Statute of Frauds, operates as a discharge if there has been part performance of such oral modification.5 An oral modification of a contract for the sale of land, which is performed by surrendering possession under such oral modification, operates as a discharge.6 If the original written contract provides for the sale of certain realty by A to B', and subsequently B Surrenders such realty to A under an oral agreement by which title to such realty is to remain in A, and A is to release such realty to B, such oral modification may be shown.7
4 Murray v. Boyd, 165 Ky. 625, 177 S. W. 468; Wright v. Cline, 172 Ky. 514, 189 S. W. 425; Thomas v. Hall, 116 Me. 140, 100 Atl. 502; Wallace v. Kelly, 148 Mich. 336, 118 Am. St. Rep. 580, 111 N. W. 1049; Scheerechmidt v. v.Smith, 74 Minn. 224, 77 N. W. 34.
5 Murray v. Boyd, 165 Ky. 625, 177 R. W. 468; Wright v. Cline, 172 Ky. 514, 189 S. W. 425; Wallace v. Kelly, 148 Mich. 336, 118 Am. St. Rep. 580, 111 N. W. 1049.
6 Thomas v Hall, 116 Me. 140, 100 All. 502.
7 Williams v. Segere, 147 Ga. 219, 93 S. E. 215.
1See Sec. 1363 et seq.
2 England. Hickman v. Haynes, L. R. 10 C. P. 598.
United States. Swain v. Seamans, 76 U. S. (9 Wall.) 254, 19 L. ed. 554.
Massachusetts. Cummings v. Arnold, 44 Mass. (3 Met.) 486, 37 Am. Dec. 155; Whittier v. Dana, 92 Mass. (10 All.) 326.
New Jersey. Long v. Hartwell, 34 N. J. L. 116.
Oregon. Rogers v. Maloney, 85 Or. 61, 165 Pac. 357.
3 Long v. Hartwell, 34 N. J. L. 116. 4 See Sec. 1371 et seq.
5 Rogers v. Maloney, 85 Or. 61, 165 Pac. 357; Marsh v. Despard, 56 W. Va. 132, 49 S. E. 24.