If the written contract contains an express provision that no change or modification thereof can be made, except by writing, to be signed by one or both parties, the parties to such contract may, nevertheless, modify or abrogate it by subsequent oral agreement, since the oral agreement will operate as a waiver of the terms of the contract inconsistent therewith, including that term which requires subsequent modification to be in writing.1 Questions of this sort are often presented in building contracts, where it is provided that modifications or contracts for extra work must be in writing, and subsequent oral agreements for extra work or modifications are held valid.2 A provision that no extra work shall be done without a written order from the architect or engineer, and an express agreement as to the extra cost has no application to extra work ordered by the owner under a provision of the contract allowing him so to do.3 A provision in a subcontract for constructing a railroad, that stone could be substituted for that specified only on the written consent of the engineer of the contractor, may be waived by subsequent oral contract.4 A provision in a building contract, that work can not be sublet without the written consent of the owner first had, may be waived by a subsequent oral agreement.5

10 Mackenzie v. Hodgkin, 126 Cal. 591, 77 Am. St. Rap. 209, 59 Pac. 36.

11 Stockton Harvester & Agricultural Works v. Glenn's Falls Ins. Co., 121 Cal. 167, 53 Pac. 565; Pearsall v. Henry, 153 Cal. 314, 95 Pac. 154 [judgment affirmed on rehearing, Pearsall v. Henry, 153 Cal. 314, 95 Pac. 159].

12 See ch. LXIX.

13McGuinnees v. Shannon, 154 Mass. 96, 27 N. E. 861.

14 Studebaker Corp. v. Miller, 169 Ky. 90, 183 S. W. 256.

1 United States. Fire Ins. Association v. Wickham, 141 U. S. 364, 36 L. ed. 860; Insurance Co. v. Wilkinson, 80 U. S. (13 Wall.) 222, 20 L. ed. 017.

Alabama. Insurance Co. v. Williams, - Ala. - , 77 So. 159.

Illinois. Chicago, etc., R. R. v. Mo-ran, 187 111. 316, 58 N. E. 335; Foster v. McKeown, 192 111. 339. 61 N. E. 514; Concord Apartment House Co. v. O'Brien, 228 111. 360, 81 N. E. 1038.

Kentucky. Illinois Central R. R. Co. v. Manion, 113 Ky. 7, 101 Am. St. Rep. 345, 67 S. W. 40.

Maine. Copeland v. Hewett, 96 Me. 525. 53 Atl. 36.

New York. Pechner v. Ins. Co., 65 N. Y. 105; Beatty v. Guggenheim Exploration Co., - N. Y. - , 122 N. E. 378.

Ohio. Expanded Metal Fire-Proofing Co. v. Noel Construction Co., 87 O. S. 428, 101 N. E. 348.

Washington. Richie v. State, 39 Wash. 95, 81 Pac. 79.

"The question would answer itself if it were not for the covenant that there shall be no waiver or amendment not evidenced by a writing. The employer sets up this covenant to nullify its oral consent. The employe asserts that the covenant is nugatory. Those who make a contract may unmake it. The clause which forbids a change may be changed like any other. The prohibition of oral waiver may itself be waived. 'Every such agreement is ended by the new one which contradicts it.' Westchester Ins. Co. v. Earle, 33 Mich. 143, 153. What is excluded by the one act is restored by another. You may put it out by the door; it is back through the window. Whenever two men contract, no limitation self-imposed can destroy their power to contract again. Pechner v. Phoenix Ins. Co., 65 N. Y. 195, 204, 205; Solomon v. Vallette, 152 N. Y. 147, 151, 46 N. E. 324; Ins. Co. v. Norwood, 69 Fed. 71, 16 C. C. A. 136; McElroy v. Assur. Co., 94 Fed. 990, 36 C. C. A. 615; Westchester Ins. Co. v. Earle, supra; Ewart on the Law of Waiver, p. 286." Beatty v. Guggenheim Exploration Co., - N. Y. - . 122 N. E. 378.

See to the opposite effect, Headley v. Cavileer, 82 X. J. L. 635, 48 L. R. A. (N.S.) 564, 82 Atl. 908.

2 Alabama. Davis v. Badders, 95 Ala. 348, 10 So. 422.

Illinois. Chicago, etc., Ry. v. Moras, 187 111. 316, 58 N. E. 335.

Kentucky. Illinois Central R. R. Co v. Manion. 113 Ky. 7, 101 Am. St. Rep. 345, 67 S. W. 40.

Minnesota. Michaud v. MaoGregor, 61 Minn. 198, 63 N. W. 479.

Nebraska. McLeod v. Genius, 31 Neb. 1, 47 N. W. 473; Jobst v. Hayden Bros., 84 Neb. 735, 50 L. R. A. (N.S.) 501, 121 N. W. 957.

Ohio. Expanded Metal Fire-Proofing Co. v. Noel Construction Co., 87 O. S. 428, 101 N. E. 348.

Washington. Crowley v. Guaranty Co., 29 Wash. 268, 69 Pac. 784.

3 Concord Apartment House Co. v. O'Brien, 228 111. 360, 81 N. E. 1038; Jobst v. Hayden, 84 Neb. 735, 50 L. R. A. (N.S.) 501, 121 N. W. 967; Cooper v. Hawley, 60 N. J. L. 660, 38 Atl. 964.

4 Chicago, etc., Ry. v. Moran, 187 111. 316. 58 N. E. 335.

5Bartlett v. Stanchfield, 148 Mass. 394, 2 L. R. A. 625, 19 N. E. 549; Gannon v. Shepard, 156 Mass. 355, 31 N E. 296.

The party for whose benefit such provision is inserted may modify or waive it.6 A provision in a written contract to the effect that no charge for extra services shall be made unless the contract for such extra services is previously made in writing, does not prevent the parties from modifying such provision by subsequent oral agreement.7 A provision that the architect has authority to modify plans only by written order has been held to be for the benefit of the owner alone, and hence subject to modification by him, without the consent of the contractor.8 Such provision has been held to be for the benefit of both owner and contractor, and to be modified only with the consent of both.9 A provision in an insurance policy to the effect that certain provisions thereof could be modified only by writing, indorsed on the policy, may be modified by a subsequent oral contract.10 The original view entertained by the courts was that such written provisions in insurance policies could not be waived by subsequent oral contracts.11

Unless it is waived, however, such a provision prevents recovery for extra work.12 The party who claims that such provision against oral modification has been waived must be able to establish the fact of such waiver.13