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.
§ 420. And in illustration of this case and others which discard the distinction as to the oral variation being in respect of a particular which is material or immaterial to the contract, or within or without the Statute of Frauds, it may not be without profit to recur to a principle which has been discussed in a previous chapter. We there saw that where a defendant verbally agrees to do two or more things, one of which is without and the others within the Statute of Frauds, the plaintiff cannot recover upon the former engagement, if his declaration be framed upon the whole, as it must be where the several engagements are in their nature interdependent, and have not been in fact severed by the anterior execution of so much as would have been affected by the statute.1 By applying this principle to the cases in question, it is perhaps more clearly seen why an oral variation of a written agreement within the Statute of Frauds, though made in respect of a particular which might, if standing alone, be good by parol, cannot be available, so long as the whole contract, embracing that which is required to be in writing as well as that which is not, remains executory.
1 Marshall v. Lynn, 6 Mees. & W. 116, 117.
2 Harvey v. Grabham, 5 Ad. & E. 74.
§ 421. If, however, the case should arise of an action to recover upon that part only which had been so varied by parol, the other part having been severed therefrom by being performed (as if, in Harvey v. Grabham, the lease had been executed, and the plaintiff had sued only for the valuation of the straw, etc., according to the substituted oral agreement), it is held, by analogy with the principle just referred to, that the action may be sustained. For when the part in respect of which the oral variation is made, has ceased to be a part of a contract required by the statute to be in writing, the statute loses its hold upon the case, and the rule of common law intervenes, allowing a contract reduced to writing to be afterward varied by parol.2
§ 422. The general rule which has thus far occupied our attention, finds perhaps its most appropriate illustration in a suit in equity for the purpose of enforcing a written contract with a subsequent oral variation ingrafted upon it. Such a case has arisen in England, and Lord Chancellor Truro held the rule to be entirely applicable, in the absence of any suggestion of fraud; and he referred also to the several cases we have reviewed, as clearly establishing it at law, and stated the case of Cuff v. Penn to have been overruled.1
1 Ante, Chapter IX (Contracts In Part Within The Statute).
2 Negley v. Jeffers, 28 Ohio. St. 90.
§ 423. But the further question remains, in what manner may such an oral variation be made available to the parties, otherwise than by a direct proceeding to enforce the contract as varied? To this the correct answer seems to be that performance, according to the orally substituted terms, is available to either party in like manner as would have been performance, according to the original contract. This is manifestly not to enforce an oral agreement within the Statute of Frauds, even by way of defence; the oral stipulation is relied upon simply by way of accord and satisfaction; it is relied upon for the purpose of proving performance alone, which is thus, so to speak, dissociated from the contract itself. And in this sense and for this purpose, there is no difficulty in accepting the distinction asserted between the contract, which is within the purview of the statute, and the performance, which is not.
§ 424. Thus, where the plaintiff has brought his action upon the original contract (as he must do), alleging non-performance by the defendant, the latter may answer that he has performed according to an oral agreement for a substituted performance, or, being ready to do so, was prevented by the fault of the plaintiff himself.2 It is not competent to him to set up the oral agreement in bar of the plaintiff's claim, not alleging his own performance or readiness to perform.
§ 425. Again, the action having been brought upon the original contract, if the defendant set up that the plaintiff did not himself perform according to its terms, the plaintiff may reply that he was ready to do so, but that it was dispensed with by the defendant assenting to a substituted performance; and his proof of such assent is not considered a variance from his declaration.1
1 Emmet v. Dewhurst, 3 McN. & G. 587.
2 Cummings v. Arnold, 3 Met. (Mass.) 486; Neil v. Cheves, 1 Bail. (S. C.) Law, 537; Lerned v. Wannemacher, 9 Allen (Mass.) 412; Whit tier v. Dana, 10 Allen (Mass.) 326.
§ 426. The question of the extent of the validity of these oral stipulations subsequently made, has been discussed at length in the Court of Common Pleas in the case of Hickman v. Haynes, the previous decisions commented upon, and the general principle reaffirmed "that neither a plaintiff nor a defendant can at law avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing, and required so to be by the Statute of Frauds." In the case before the court, the plaintiff, to accommodate the defendants, had postponed the delivery of certain goods which he had agreed to sell. The defendants, having refused to accept them even after the postponement, sought to rely upon the fact of the oral extension as having invalidated the contract. The court held, however, that although the plaintiff assented to the defendant's request not to make the delivery at the contract time, he must be taken to have been ready to deliver then, and that the defendants were estopped from averring the contrary.2
§ 426 a. This case was followed the next year by the case of Plevins v. Downing. In that case the plaintiff, whose original contract bound him to deliver the goods in July, sought to recover for the refusal of the defendant to receive them in the following October. The plaintiff had failed in his July delivery, and relied upon a verbal request by the defendant made in October, to deliver. With regard to this, the court, while approving Hickman v. Haynes, pointed out the distinction between that case and the one before them, and they held that the plaintiff, being unable to show readiness and willingness to deliver in July, and being "logically driven to rely upon the subsequent request of the defendant, either as a proposed alteration of a term of the original contract, or as a request upon which to hang a new contract to accept," could not recover.1