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.
The new contract may so modify the original contract that the provisions in the original contract which brought it within the operation of the Statute of Frauds are entirely eliminated. In such cases, in jurisdictions in which the original contract may be rescinded by oral agreement,1 the new contract is enforceable,2 since a transaction of this sort amounts to an oral rescission of the original contract, and to the making of a new contract which contains no provisions which would bring it within the operation of the Statute of Frauds.3
Since the Statute of Frauds applies to executory covenants, and not to those which have been performed,4 a contract which was originally within the Statute of Frauds, but which has been performed as to the covenants which brought it into the terms of the statute, may be modified by a subsequent oral agreement as to the remaining covenants,5 since a contract of this sort would not have been within the scope or operation of the statute in the first instance.
5Carr v. Williams, 17 Kan. 575 [disapproved, Ely v. Jones, 101 Kan. 572, 168 Pac. 1102]; Grunow v. Salter, 118 Mich. 148, 76 N. W. 325; Stewart v. McLaughlin, 126 Mich. 1, 85 N. W. 266, 87 N. W. 218; Pratt v. Morrow, 45 Mo. 404, 100 Am. Dec. 381; Thill v. Johnston, 60 Wash. 393, 111 Pac. 226. 6 Thill v. Johnston, 60 Wash. 393, 111 Pac. 225.
7 Grunow v. Salter, 118 Mich. 148, 76 N. W. 325; Stewart v. McLaughlin,
126 Mich. 1, 85 N. W. 2,6 87 N. W. 218.
8 Stewart v. McLaughlin, 120 Mich. 1, 85 N. W. 266, 87 N. W. 218; Maxon v. Gates, 112 Wis. 196, 88 N. W. 54.
9 Sanderson v. Graves, L. R. 10 Exch. 234.
1 See Sec. 2481.
2 Williams v. Moss's Empires, Lim. , 3 K. B. 242.
3 Williams v. Moss's Empires, Lim. , 3 K. B. 242.
4 See Sec. 1363 seq.