The oral agreement sometimes provides for terminating the original contract without substituting any executory provisions in its place. According to the weight of authority, such an oral agreement is enforceable,1 since the statute provides the means by which a contract may be proved if it is sought to bring an action thereon, but makes no provisions as to the means by which such contract may be terminated. If the original contract is one which by its terms can not be performed within the year, a subsequent oral agreement terminating such contract is accordingly held to be enforceable.2 A right to cut and use timber, which is created by a written contract, may be waived by an oral agreement.3 It has even been held that if the original contract creates some interest in realty, a subsequent oral discharge of such contract is enforceable, even though the statute specifically provides that the surrender of an interest in realty, except surrenders by act or operation of law, must be in writing.4

The courts are not unanimous, however, as to the effect of an oral contract terminating a prior written contract which is within the provision of the Statute of Frauds; and in some jurisdictions it is held that an oral contract can not operate as a discharge of such original written contract.5 This theory has been invoked where the original contract created an interest in land,6 and especially where the statute which controls such transaction, requires the surrender of an interest in land, other than the surrender by operation of law, to be in writing.7 Under such statute, the executory oral contract for terminating the original written contract, is held not to be a surrender by operation of law.8

6 Marsh v. Despard, 56 W. Va. 132, 49 S. E. 24.

7 Marsh v. Despard, 56 W. Va. 132, 49 S. E. 24.

1 United States. Hansen v. Uniform Seamless Wire Co., 243 Fed. 177, 156 C. C. A. 43 [affirming decree, 235 Fed. 616],

Indiana. Ferguson v. Boyd, 169 Ind. 537, 81 N. E. 71, 82 N. E. 1004.

Iowa. Henderson v. Beatty, 124 Ia. 163, 99 N. W. 716.

Kansas. Ely v. Jones, 101 Kan. 672, 168 Pac. 1102 [disapproving, Carr v. Williams, 17 Kan. 5751.

North Dakota. Haugen v. Skjerv-heim, 13 N. D. 616, 102 N. W. 311.

Ohio. Reed v. McGrew, 5 Ohio 375.

Oregon. Elliott v. Bozorth, 52 Or. 391, 97 Pac. 632.

Utah. Outwright v. Union Savings & Investment Co., 33 Utah 486. 14 Am. & Eng. Ann. Cas. 725, 94 Pac. 984.

Wisconsin. Hutchins v. Da Costa, 88 Wis. 371, 60 N. W. 427; Maxon v. Gates, 112 Wis. 196, 88 N. W. 54.

2 Hansen v. Uniform Seamless Wire Co., 243 Fed. 177, 156 C. C. A. 43 [affirming decree, 235 Fed. 616].

3 Lee v. Hawks, 68 Miss. 669, 13 L. R. A. 633, 9 So. 828.

4 Hutchins v. Da Costa, 88 Wis. 371, 60 N. W. 427.

Unless it appears that the parties intended to terminate the original contract in case they could not modify it by subsequent oral agreement, it will be presumed that the parties intended to terminate or modify such oral agreement solely for the purpose of substituting therefor the subsequent oral agreement. Accordingly, if such oral agreement is itself unenforceable, the original contract will remain in full force and effect, unaffected by the attempted oral rescission or modification.9