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 Stevens v. Cooper, 1 Johns. (N. Y.) Ch. 425.
2 2 Eq. Cas. Abr. 33; Bell v. Howard, 9 Mod. 302. See Arrington v. Porter, 47 Ala. 714. 3 Ante, § 229. 4 Gorman v. Salisbury, 1 Vern. 240.
§ 433. And this opinion, that a parol discharge of a written contract within the Statute of Frauds is available in equity to repel a claim upon that contract, to which the mind of Lord Hardwicke came so reluctantly, is since firmly established by many authorities.3 But it has been laid down by Lord Lyndhurst that, although such waiver is unquestionably admissible according to the rule stated, it must be in effect a total dissolution of the contract, such as would place the parties in their original situation.4
§ 434. The question of the admissibility of such a parol waiver as a defence to an action at law was raised, and, it would seem, for the first time, in the case of Goss v. Lord Nugent, in the Queen's Bench, where the court remarked that the statute did not say that all contracts concerning the sale of lands should be in writing, but only that no action should be brought unless they were in writing; and that as there was no clause in the act which required the dissolution of such contracts to be in writing, it should rather seem that a written contract concerning the sale of lands might still be waived and abandoned by a new agreement not in writing, and so as to prevent either party from recovering in an action on the contract which was in writing.1
1 Backhouse v. Crosby, 2 Eq. Cas. Abr. 32, Pl. 44.
2 Bell v. Howard, 9 Mod. 302.
3 Sugden, Vend. & P. 173; Roberts on Frauds, 89 Phelps v. Seely, 22 Grat (Va.) 573; Marsh v. Bellew, 45 Wisc. 36; Jones v. Booth, 38 Ohio St. 405; Miller v. Pierce, 104 N. C. 389.
4 Robinson v. Page. 3 Russ. 119.
§ 435. As thus stated, the admission of the parol waiver is apparently put upon the ground that it is only used for defence. But in an earlier part of this work, it was shown that to defend upon a verbal contract within the Statute of Frauds was as much in opposition to its spirit as to prosecute a claim upon it.2 This reason is forcibly urged by Sir Edward Sugden against admitting parol evidence of waiver in such cases. And he gives it as his opinion, upon a review of the cases,3 that "perhaps the better opinion is that it is inadmissible at law."4 On the other hand, Mr. Phillips says that it seems to be generally understood that such parol evidence is admissible;5 and Mr. Greenleaf considers that there is little doubt of its admissibility.6
§ 436. It must be observed that those writers who stand opposed to Sir Edward Sugden upon this question, rest their opinions chiefly upon the somewhat unsatisfactory language used by the court in Goss v. Lord Nugent. If they are to be sustained, it would seem that it must rather be upon the ground, upon which a parol waiver even of an instrument under seal has been admitted in evidence, that he who prevents a thing being done shall not avail himself of the nonperformance he has occasioned.7
1 Goss v. Lord Nugent, 5 Barn. & Ad. 67.
2 Ante, §§ 131 et seq. 3 Sugden, Vend. & P. 171, 172.
4 Sugden, Vend. & P. 173, 174. See also Noble v. Ward, L. R. 1 Exch. 117. Affirmed in the Exchequer Chamber, L. R. 2 Exch. 135. 5 2 Phillips 363 (Cowen & Hill's ed. 1849).
6 1 Greenl. Ev. § 302, See also Phil. & Am. Ev. 776; Lawrence v. Dole, 11 Vt. 549; Raffensberger v. Cullison, 28 Pa. St. 426; Boyce v. McCullough, 3 Watts & S. (Penn.) 429; Morse v. Copeland, 2 Gray (Mass.) 302.
7 Fleming v. Gilbert, 3 Johns. (N. Y.) 528. See Canal Co. v. Ray, 101 U. S. 522. In Cummings v. Arnold, 3 Met. 494, the Supreme Court of Massachusetts assert, and apparently upon the view suggested in the text, that to an action upon a written contract within the Statute of Frauds a plea that it had been totally dissolved before breach, by an oral agreement, would be a good and sufficient bar.