This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Ante, §§ 191, 400.
2 The view which is here attempted to be controverted seems to be that entertained, however, by an American author of much consideration. See Parsons on Contracts, vol. ii. p. 297.
3 Cooper v. Dedrick, 22 Barb. (N. Y.) 516; Day v. Elmore, 4 Wisc.
§ 409. Where a contract, within the Statute of Frauds, has been put in writing, it is of course governed by the rule excluding oral evidence of what passed by way of agreement or proposition before or at the time of making the contract in writing, between the parties to it; a rule which prevails as well in equity, wherever such evidence is offered to sustain the plaintiff's suit, as in actions at law.1 On the other hand, it is competent to show by oral evidence the circumstances under which the written agreement was made, so far as they may tend to aid the construction or application of its contents. Again, it is a familiar principle of equity, when the court is called upon to decree the specific execution of a written agreement, that the defendant may by parol evidence prove that by fraud, mistake, or surprise, the writing fails to show the real agreement entered into by the parties. And the Statute of Frauds does not interdict such evidence in such cases. To use the language of Lord Redesdale, before quoted, "The statute does not say that if a written agreement is signed, the same exception shall not hold to it that did before the statute. ... It does not say, that a written agreement shall bind, but that an unwritten agreement shall not bind."2
§ 409 a. There is, however, a further rule, prevailing at common law, in regard to which it is a matter of some difficulty to ascertain how far, if at all, it applies to contracts required to be in writing by the provisions of the statute. This rule is that a contract reduced to writing may, by oral agreement of the parties subsequently made, and before any breach has occurred, be varied in one or more of its terms or be wholly waived or discharged; the contract, when so varied, subsisting partly in writing and partly in parol, and as such remaining obligatory upon the parties.1
190; Miller v. Cook, 23 N. Y. 495; Emerson v. Aultman, 69 Md. 125; Osborne v. Baker. 34 Minn. 307.
1 See Snelling v. Thomas, L. R. 17 Eq. 303; Garbanati v. Fassbinder, 15 Col. 535.
2 Clinan v. Cooke, 1 Schoales & L. 39; Glass v. Hulbert, 102 Mass. 24, 35.
§410. We have already seen that if the "bargain" or " agreement " has not been put in writing, the memorandum must show the terms as stipulated by the parties at the time of making the contract. The question now is, how far the parties may, by a subsequent oral agreement, waive, add to, or vary the terms contained in the written contract, or the memorandum.
§ 411. It seems to be well established that where a contract, affected by the statute, has been put in writing, and the plaintiff, in a case of subsequent oral variation of some of the terms of the written agreement, declares upon the writing as qualified by the oral variation, he cannot prevail. The decision in Cuff v. Penn, one of the earliest and most important cases of this class, was in fact to the contrary;2 but from the report the point does not seem to have been distinctly in the mind of the court, the whole stress of the opinion bearing upon another position; and later English and American authorities have conclusively settled the rule as above laid down.3
1 Goss v. Lord Nugent, 5 Barn. & Ad. 58; 1 Greenl. Ev. § 34; 1 Phillips Ev. (Cowen & Hill's ed.) 563, note, 987.
2 Cuff v. Penn, 1 Maule & S. 21. In the judgment of the Supreme Court of Massachusetts in Stearns v. Hall, 9 Cush. 31, this case appears to be misapprehended in this respect. It is there spoken of as having been an action upon the original written contract. But, in fact, the declaration in Cuff v. Penn contained three counts, the first upon that contract, and the second and third on the contract as afterward varied by parol; and it was on these latter counts that the plaintiff's verdict was rendered and sustained.
3 See the cases referred to hereafter, § 414. The Supreme Court of Massachusetts fully admit the truth of this proposition in Cummings v. Arnold, 3 Met. 486. See further, Jordan v. Sawkins, 1 Ves. Jr. 402; Parteriche v. Powlet, 2 Atk. 383; Blood v. Goodrich, 9 Wend. (N. Y.) 68; Rogers v. Atkinson, 1 Kelly (Ga.) 12; Bryan v. Hunt, 4 Sneed (Tenn.) 543; Dana v. Hancock, 30 Vt. 616; Whittier v. Dana, 10 Allen (Mass.) 326; Noble v. Ward, L. R. 1 Exch. 117; Carpenter v. Galloway, 73 Ind. 418; Heisley v. Swanstrom, 40 Minn. 196; Hill v. Blake, 97 N. Y.
§ 412. But, this rule being admitted as correct, there remain two questions of some interest and importance which it suggests. First. In what cases, if any, can it be said that notwithstanding a subsequent oral variation of the agreement in some respect, the original contract substantially remains? Secondly. How far may such variation be made available to the parties, otherwise than by a direct proceeding to enforce the contract as varied?
§ 413. In the case of Cuff v. Penn, before referred to, where the parties to a written agreement for the sale of goods, specifying the times at which they were to be delivered, subsequently made a verbal change postponing such delivery, it was remarked by Lord Ellenborough that "the contract remained," notwithstanding the verbal stipulation for a "substituted performance." The distinction here suggested between the contract itself, as being alone that which the statute requires to be proved by writing, and the performance of it, as being something distinct therefrom and to which the statute has no application, has occasioned, by a somewhat undiscriminating application of it, much of the embarrassment attending this subject. For certain purposes, as will be seen hereafter, the distinction clearly exists and must be applied; but not in any such way as to impair the integrity of the rule heretofore stated; and such is the clear result of the later authorities, both English and American.