1 Stearns v. Hall, 9 Cush. (Mass.) 31; Swain v. Seamens, 9 Wall. (U. S.) 254; Leather Cloth Co. v. Heironimus, L. R. 10 Q. B. 140; Long v. Hartwell, 34 N. J. L. 116.

2 Hickman v. Haynes, L. R. 10 C. P. 598, 605. The plaintiff was also allowed to recover damages assessed according to the market price at the later or postponed date. See Ogle v. Lord Vane, L. R. 3 Q. B. 272; Smith v. Loomis, 74 Me. 503.

§ 427. There remains to be discussed under this head only one case, Stowell v. Robinson, decided in the Common Pleas in 1836. The plaintiff declared upon a written agreement by which the defendant engaged to assign to him a lease, possession to be given by a certain day, and that he had good right to assign; breach, that he had not such right, and could not perform his engagement; and a count was added for money had and received to recover back 50 which the plaintiff had advanced as deposit, on the ground that the defendant had not completed the conveyance and given possession on the day agreed. The defendant pleaded that he had good right to assign; that neither he nor the plaintiff was ready on the day named for delivering possession; that it was orally agreed to postpone it a reasonable time if the defendant would make out title meanwhile; that he did so make out title, but the plaintiff then refused to perform. A verdict having been obtained for the defendant, the court said they would not disturb it upon the special count, as it was not considered sufficiently proved; but in view of the count for the deposit they set the verdict aside, the defendant not having assigned on the day originally agreed. Chief Justice Tindal, who delivered judgment, said that the question was whether the day for the completion of the purchase of an interest in land, inserted in a written contract, could be varied by a parol agreement, and another day substituted so as to bind the parties; and that the court were of opinion it could not. And, although admitting that upon the case shown, neither party was ready on the day first agreed, he says that to allow the oral variation would be "virtually and substantially to allow an action to be brought on an agreement relating to the sale of land, partly in writing, and signed by the parties, and partly not in writing but by parol only, and amounts to a contravention of the Statute of Frauds."1

1 Plevins v. Downing, 1 C. P. D. 220.

§ 428. From the report of this case, it nowhere appears that the distinction between relying upon the oral variation "so as to bind the parties," and relying upon readiness to perform according to its tenor as a defence in the nature of accord and satisfaction, was brought to the notice of the court; nor is there, in the decision itself, any allusion to the English cases antecedent to Cuff v. Penn, where this distinction appears to be recognized. It is to be remarked, also, that in neither Stead v. Dawber nor Marshall v. Lynn, both decided subsequently to Stowell v. Robinson, and both asserting the rule that an action could not be maintained upon an agreement, embraced by the Statute of Frauds, partly in writing and partly resting in parol, do the judges quote that case as an authority.2 These circumstances may incline us to doubt whether it can be so regarded. The Supreme Court of Massachusetts, in their careful and discriminating judgment in Cummings v. Arnold, say: "It appears to us, that the case of Stowell v. Robinson was decided on a mistaken construction and application of the Statute of Frauds; and that the distinction between the contract of sale, which is required to be in writing, and its subsequent performance, as to which the statute is silent, was overlooked, or not sufficiently considered by the court; otherwise, the decision perhaps might have been different."8

§ 429. The only question that remains is, how far parol evidence is admissible to prove the waiver or discharge of a contract once put in writing in obedience to the requirements of the Statute of Frauds.

1 Stowell v. Robinson, 3 Bing. N. R. 937.

2 In Home v. Wingfield, 3 Scott N. R. 340, Mr. Justice Coltman refers to it as seeming to oppose an obstacle to a parol waiver of a promise to deliver an abstract of title, - a case which, it is said, might be raised by an amendment of that actually before the court.

3 Cummings v. Arnold, 3 Met. 494.

§ 430. Mr. Chancellor Kent remarks, that in certain cases, and on certain terms, an agreement in writing concerning lands (and the reason of the remark, doubtless, applies to all other classes of contracts within the statute) may be discharged by parol; but that the evidence in such cases is good only as a defence to a bill for specific performance, and is totally inadmissible, at law or in equity, as a ground to compel a performance in specie.1 Passing by, for the present, the question whether such parol evidence may be introduced in equity only, in defence it may be remarked that the precise meaning of the learned Chancellor seems to be that it is inadmissible, either in equity to compel a performance in specie, or at law to support a claim for damages. And such seems to be clearly the correct opinion. Lord Hardwicke has observed that an agreement to waive a purchase contract was as much an agreement concerning lands as the original contract.2 We have seen that a contract by one who holds an agreement for the sale of lands to him, to dispose of his rights to a third party, is to be treated as itself a contract for the sale of an interest in land;3 and it is substantially the same thing if he release that right to him who executed the agreement to sell, or, in other words, waive and discharge the agreement by parol.

§ 431. The question how far the parol waiver in such cases may be set up presents more difficulty, and may be considered in two views, as it may arise in equity or in law.

§ 432. In Gorman v. Salisbury, an early case before Lord Keeper North, where a bill was brought for a specific execution of a written contract, it was held that a parol discharge was binding, and the bill was dismissed.4 Afterwards, when this case was cited upon a similar one before Lord Hard-vvicke, he declared that he would not say that a contract in writing could not be waived by parol, yet he should expect in such a case very clear proof, and, the defendant before him not furnishing such proof, the plaintiff had a decree.1 In another case he said it was certain that an interest in land could not be parted with or waived by naked parol without writing; yet articles might by parol be so far waived that if the party came into equity for a specific execution, such parol waiver would rebut the equity which the party before had, and prevent the court from executing them specifically.2