§ 414. In the case of Goss v. Lord Nugent, there was a written agreement by which the defendant was to purchase certain lots of land, and the plaintiff bound himself to make a good title to them all. Subsequently he was, by verbal arrangement with the defendant, released from this obligation as to one of the lots, and the defendant took possession of the whole. Upon the plaintiff's suing him for the unpaid balance of the purchase-money of the whole, however, and declaring upon the agreement as so altered, he objected that the agreement, in order to charge him upon it, must be wholly in writing; and the court sustained the objection, and set aside the verdict which the plaintiff had obtained below.1 So in Harvey v. Grabham, where the subject-matter of the oral variation was merely the method of valuation of certain straw, etc, which was, by written agreement for the sale of land, reserved to the vendor.2 So in Stead v. Dawber, a decision of the Queen's Bench, where the oral variation was, as in Cuff v. Penn, simply in the time of delivery of a cargo contracted for by the plaintiff.3 And so in Marshall v. Lynn, a decision of the Court of Exchequer, upon similar facts.4

216; Randolph v. Frick. 50 Mo. App. 275; Rucker v. Harrington, 52 Mo. App. 481; Burns v. Fidelity Real Estate Co., 52 Minn. 31. In Low v. Treadwell, 12 Me. 441. and Grafton Bank v. Woodward, 5 N. H. 99, Mr. Chitty is cited as saying in his Law of Contracts, that "a subsequent parol agreement not contradicting the terms of the original contract, but merely in continuance thereof, and in dispensation of the performance of its terms as in prolongation of the time of execution, is good, even in the case of a contract reduced to writing, under the Statute of Frauds." In neither of those cases, however, was it found necessary to apply this doctrine judicially, the contracts in question not being within the statute; and it does not seem to have been reasserted in the later editions of that esteemed author See 9th Araer. from 5th Lond. ed.

§ 415. The ground upon which the cases just cited were all decided is this: that the plaintiff sued upon a contract which the Statute of Frauds required to be in writing, but which in fact was partly in writing and partly in parol; and that although originally put in writing, and varied only as to the manner of performance, still the suit could not be said to be upon the original written contract, but upon a new contract made out by incorporating therewith certain oral stipulations.5

1 Goss v. Lord Nugent, 5 Barn. & Ad. 58.

2 Harvey v. Grabham, 5 Ad. & E. 61.

3 Stead v. Dawber, 10 Ad. & E. 57. But where the first contract is valid, and the second, or modifying one is within the statute, the first can still be enforced. See Noble v. Ward, L. R. 1 Exch. 117; L. R. 2 Exch. 135; Sanderson v. Graves. L. R. 10 Exch. 234.

4 Marshall v. Lynn, 6 Mees. & W. 109.

5 See Barton v. Gray, 57 Mich. 622.

§ 416. It clearly appears from these cases, and indeed it could hardly be questioned, that the rule must apply equally to all contracts embraced by the provisions of the statute, whether bargains for goods, under the seventeenth section, or any of the various agreements enumerated in the fourth.

§ 417. They show also that no exception can be founded upon the question whether the particular in respect of which the oral variation is made, is itself a material particular of the contract. In the case of Stead v. Dawber, it is true, where the value of an article contracted for had risen in the interval between the time fixed by the writing for delivery and the time to which it was afterward verbally posptoned, the court lay some stress upon that fact as showing the time of delivery to have been essential to the bargain.1 But this distinction finds no countenance in any other of the cases referred to, whether prior or subsequent to itself. Thus in Goss v. Lord Nugent, the Chief Justice Lord Denman said, alluding to the suggestion that the waiver of title as to one of the number of lots was only an abandonment of a collateral point, "We think the object of the Statute of Frauds was to exclude all oral evidence as to contracts for the sale of lands, and that any contract which is sought to be enforced must be proved by writing only." And while insisting that the title to a piece of land was by no means a non-essential of a contract for its purchase, he distinctly says that the opinion of the court is not formed upon that view, but "upon the general effect and meaning of the Statute of Frauds, and that the contract now brought forward by the plaintiff is not wholly a contract in writing."2

§ 418. Again, in Marshall v. Lynn, where the oral variation was in respect of the time fixed for the delivery of a cargo, and it was contended by counsel that this time appeared to be a material part of the contract, and the court, on the broad ground heretofore stated, denied the plaintiff's claim to recover, Mr. Baron Parke took occasion to say that it seemed to him "to be unnecessary to inquire what are the essential parts of the contract and what not, and that every part of the contract, in regard to which the parties are stipulating, must be taken to be material;" and he alludes to the suggestion made in Stead v. Dawber, with the remark that it might be considered as laying down too limited a rule. In the course of the argument he had already said, "No doubt every particular of the contract need not be mentioned; but if mentioned it must be observed."1

1 Stead v. Dawber, 10 Ad. & E. 57.

2 Goss v. Lord Nugent, 5 Barn. & Ad. 67.

§ 419. Again, in the case of Harvey v. Grabham, the oral variation was in respect of a particular which was in the first instance not required to be in writing, namely, the valuation back to one party of certain straw, etc., lying upon land which he had contracted to lease to the other; but this particular had been, in fact, put in writing as part of one entire transaction with the contract to lease the land. Even there, the court held that on a declaration upon the stipulation for payment for the straw, etc., as making part of the entire contract, including the engagement to lease the land, the plaintiff could not enforce the orally substituted valuation. If he could, says Lord Denman, speaking for the court, "it would follow that, should the present plaintiff hereafter refuse to execute the lease, the present defendants, in suing for such refusal, would be obliged to state the altered agreement as the consideration, and aver a readiness to perform it, and would have to prove their case partly by writing and partly by oral evidence; the very predicament which the Statute of Frauds was intended to prevent." 2