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.
A subsequent contract which does not by express terms abrogate an earlier contract, will, nevertheless. operate as a discharge thereof if it is inconsistent with such earlier contract.1 If the later contract does not expressly abrogate the earlier in toto, but is inconsistent therewith, the scope of the later contract determines whether any part of the earlier contract is in force. If the later contract between the parties covers the same subject-matter and has the same scope as the earlier contract, but is in whole or in part inconsistent therewith, the later contract abrogates the earlier contract in toto and is the only contract upon the subject between the parties.2 Thus an oral agreement to convey or devise land, even if otherwise enforceable.
is avoided by the promisee's accepting a subsequent lease of such land, inconsistent with his rights under such contract.3 An option to buy the fee is not as a matter of law, however, surrendered by taking a lease upon such realty.4 A agreed with B, a street railway company, to construct iron work and appliances for certain curves, at a certain rate per foot. Subsequently, by mutual agreement, the parties changed the weight of the iron to be used, and modified the specifications so as to make one curve where there had before been three. The distance was thus lengthened. It was held that in the absence of an express agreement to the effect that the same price per foot was to be paid, that such contract abrogated the original contract as to the rate per foot which A was to receive.5 A contract between a municipal corporation and a street railway company, by which a certain rate of fare to be charged by a railway company is agreed upon, and the railway company assumes a liability for paving a certain place along its tracks, for which it was not before liable, and agrees to charge but one fare for transportation over its whole line, whereas before it was entitled to charge in some cases more than one fare, abrogates the original contract between such railway company and city, fixing the rate of fare and reserving to the city the right to make subsequent changes in such rates.6 A contract for the sale of a certain number of tons of cotton seed at a certain price, is abrogated by a new contract between the parties for the sale of a less number of tons at an increased price.7 If a new contract is entered into between the parties, upon the same subject-matter, as an alleged prior contract, it has been held that the protest of one of the parties claiming rights under such alleged prior contract, does not prevent the new contract from abrogating the earlier one.8 So. if a contract is rescinded when only partly performed, and a new contract entered into to pay for the work done, such contract abrogates a provision of the earlier contract as to the time of payment.9 A now contract for construction abrogates a provision in a prior contract providing that the engineer's decision upon certain matters should be final.10 A contract by which A agrees to support B for life, in consideration of the rents of certain property belonging to B, is terminated by a contract by which B pays to A a certain sum of money in full settlement of all rights and liabilities under the contract.11
27 Canadian Impl. Co. v. Lea, 74 N. J. Eq. 234, 69 Atl. 455.
28Landvoigt v. Paul, 27 D. C. App. 423.
29Landvoigt v. Paul, 27 D. C. App. 423.
30 Canada. Ross v. Barry, 19 Can. S. C. 360.
United States. American, etc., Co. v. Ry., 47 Fed. 343.
Connecticut. Bray v. Loomer, 61 Conn. 456, 23 Atl. 831.
Iowa. Chandler v. Knott. 86 Ia. 113, 53 N. W. 88.
Minnesota. Gray v. Barge, 47 Minn. 498. 50 N. W. 1014.
Pennsylvania. Robert Grace Contracting Co. v. Norfolk & \V. Ry. Co., 259 Pa. St. 241. 102 Atl. 956.
31 Grosse v. Sweet, 188 111. 555, 59 N. E. 432 [affirming, 80 111. App. 4181.
32 Thayer v. Alliaon, 109 111. 180. 33McCauley v. Keller, 130 Pa. St. 53,
17 Am. St. Rep. 756, 18 Atl. 607.
1 United States. Cleveland City Ry. Co. v. Cleveland, 94 Fed. 385; Fox v. Tyler, 109 Fed. 258, 48 C. C. A. 336.
Georgia. Kirklin v. Loan Association, 107 Ga. 313, 33 8. E. 83.
Kentucky. Menefee v. Rank ins. 15S Ky. 78, 164 S. W. 365.
Massachusetts. Holt v. Silver, 169 Mass. 435. 48 N. E. 837.
Michigan. Robinson v. Ry., 84 Mich. 658, 48 N. W. 205.
Minnesota. Fitzhugh v. Harrison, 75 Minn. 481, 78 N. W. 95.
Montana. Frank v. Cobban. 20 Mont. 168. 60 Pac. 423.
Nebraska. Hall v. Eccles, 46 Neb. 880, 65 N. W. 1058; Nebraska National Bank v. Clark, 58 Neb. 183, 78 N. W. 527.
New York. Wood v. Whitehead Bros. Co., 165 N. Y. 545, 59 N. E. 357.
Pennsylvania. Green v. Paul, 155 Pa. St. 126. 25 Atl. 867; Thompson v. Craft, 238 Pa. St. 125, 86 Atl. 1107.
Washington. Sherman v. Sweeny, 29 Wash. 321, 69 Pac. 1117.
Wyoming. Hogan v. Peterson, 8 Wyom. 49, 50 Pac. 162.
2 England. Patmore v. Col'burn, 1 Cromp. M. & R. 65.
Canada. Penman Mfg. Co. v. Broad-head, 21 Can. S. C. 713.
United States. Housekeeper Publishing Company v. Swift, 97 Fed. 290, 38 C. C. A. 187.
California. Bourn v. Dowdelt (Cal, 50 Pac. 695.
Illinois. Stow v. Russell, 36 IH. 18; Harrison v. Polar Star Lodge, 116 111. 279, 5 N. E. 543.
Indiana. McDonough v. Kane, 75 Ind. 181.
Kentucky. Walton-Wilson-Rodes Co. v. McKitrick, 141 Ky. 415, 132 S. W. 1046.
Maine. Paul v. Meservey, 58 Me. 419.
Maryland. Howard v. Railroad Co., 1 Gill. (Md.) 311; Linz v. Schuck, 106 Md. 220, 124 Am. St. Rep. 481, 11 L. R. A. (N.S.) 789. 67 Atl. 286.
Missouri. Chrism an v, Hodges, 75 Mo. 413; Tuggles v. Callison, 143 Mo. 527, 45 S. W. 291.
New Jersey. Morecraft v. Allen, 78 N. J. L. 729, L. R. A. 1915B. 1, 75 Atl. 920.
New York. Renard v. Sampson, 12 N. Y. 561; McCreery v. Day, 119 N. Y. 1, 16 Am. St. Rep. 793, 6 L. R. A. 503, 23 N. E. 198.
Oregon. Spreckel v. Bender, 30 Or. 577, 48 Pac. 418.
Texas. Burke v. Purifoy, 21 Tex. Civ. App. 202, 50 S. W. 1089.
Washington. Tribble v. Yakima Valley Transportation Co., 100 Wash. 589, 171 Pac. 544.
West Virginia. Myers v. Carnahan, 61 W. Va. 414, 57 S. E. 134.
3 Harmon v. Harmon, 51 Fed. 113; Unger v. Unger, 65 O. S. 496, 63 N. E. 67.
4 Wade v. Oil Co., 46 W. Va. 380, 32 8. E. 169.
ft Marshall, etc., Go. v. Traction Co., 138 Pa. St. 266, 22 Atl. 23.
6 Cleveland City Ry. v. Cleveland, 94 Fed. 385.
7 Consumers' Cotton-Oil Co. v. Ash-burn, 81 Fed. 331. (The new contract was made after the vendor had repudiated his original contract to sell at a lower price.)
8 United States v. Lamont, 155 U. S. 303, 39 L. ed. 160.
9 South End Improvement Co. v. Harden (N. J. Eq.). 52 Atl. 1127.