Parties may by parol

seal, or the time of per

J. S. L'Amoreaux for appellants. waive covenants in a contract under formance may be extended by parol. The enlarged time is substituted for the time specified in the original contract. This is not in conflict with the general rule that a written contract cannot be varied or modified by parol. (Homer v. G. Ins. Co., 67 N. Y. 478, 481; Burt v. Saxton, 1 Hun, 553; Jenks v. Robertson, 58 N. Y. 621; Dodge v. Crandall, 30 N. Y. 294; Schmidt v. Cowperthwait, 66 How. Pr. 477; Roby v. A. C. Ins. Co., 120 N. Y. 511; McCreery v. Day, 119 N. Y. 1; Pechner v. P. Ins. Co., 65 N. Y. 207; Newman v. Nellis, 97 N. Y. 285; Griswold v. Haven, 25 N. Y. 608; McNeil v. T. N. Bank, 46 N. Y. 325; Conrow v. Little, 115 N. Y. 387; Trustees, etc., v. Smith, 118 N. Y. 634; Blair v. Wait, 69 N. Y. 113; Thompson v. Simpson, 128 N. Y. 271; In re St. Nicholas Terrace, 143 N. Y. 621; Kenyon v. K. T. M. M. A. Assn., 122 N. Y. 247; Dunn v. Steubing, 120 N. Y. 232; Bishop v. A. I. Co., 130 N. Y. 488; Messelback v. Norman, 122 N. Y. 578; Kane v. Cortesy, 100 N. Y. 132; McKenzie v. Harrison, 120 N. Y. 260; Clark v. Dales, 20 Barb. 64; Esmond v. Van Benscoten, 12 Barb. 367; Stone v. Sprig, 20 Barb. 509; Grange v. Palmer, 56 Hun, 481; Vandekar v. Reeves, 40 Hun. 430; S. R. H. Co. v. Brennan, 64 Hun, 607; In re Cooper, 93 N. Y. 512; Lowry v. Tew, 3 Barb. Ch. 413; Pope v. O'Hare, 48 N. Y. 452; Lobdell v. Lobdell, 36 N. Y. 327; Mead v. Parker, 111 N. Y. 259; Lattimore v. Harsen, 14 Johns. 329; Dearborn v. Cross, 7 Cow. 48.) There was sufficient consideration to support the modified contract. (Freeman v. Freeman, 43 N. Y. 39; Sands v. Crooke, 46 N. Y. 570; White v. Baxter, 71 N. Y. 260; Marie v. Garrison, 83 N. Y. 43; Rector, etc., v. Teed, 120 N. Y. 583; Hamer v. Sidway, 124 N. Y. 538; Dunn v. Steubing, 120 N. Y. 232.) The action cannot be maintained as the complaint is framed. (Southwick v. F. N. Bank, 84 N. Y. 428; Truesdell v. Searles, 104 N. Y. 167.)

Isaac Lawson for respondent. There was no refusal of the defendants' motion for a nonsuit.

error in the

(Dustan v.

McAndrews, 44 N. Y. 72; Mason v. Decker, 72 N. Y. 595; 57 Hun, 285.) No proof of any defense having been given upon the trial, the defendants, upon this appeal, must stand solely upon their offer of proof. But the defendants' offer was properly overruled. The rule is that if an offer of proof contains any matter not properly provable the whole may be rejected. (Hosley v. Black, 28 N. Y. 438; Harger v. Edmonds, 4 Barb. 256; Stevens v. Rhinelander, 5 Robt. 285; F. N. Bank v. Wood, 71 N. Y. 405; McKyring v. Bull, 16 N. Y. 297; Morrell v. I. F. Ins. Co., 33 N. Y. 443; Beaman v. Lyon, 27 Wkly. Dig. 168; Daniels v. Patterson, 3 N. Y. 47; Keller v. N. Y. C. R. R. Co., 24 How. Pr. 185.) The agreement which it was sought to change and modify by the evidence offered was one for the sale of an interest in land within the provision of the Statute of Frauds. (2 R. S. [Edm. ed.] 139, § 8; Green v. Armstrong, 1 Den. 550; McGregor v. Brown, 10 N. Y. 114; Blood v. Goodrich, 9 Wend. 67; Hasbrouck v. Tappan, 15 Johns. 200; Marshall v. Lynn, 6 M. & W. 109; Stowell v. Robinson, 3 Bingh. [N. C.] 425; Hickman v. Haynes, L. R. [10 C. P.] 604; Ladd v. King, 1 R. I. 224; 1 Chitty on Cont. [11th ed.] 155; Benjamin on Sales [ed. of 1888], 174; Holcomb v. Munson, 4 N. Y. S. R. 255; Proctor v. Thompson, 13 Abb. [N. C.] 343; Swain v. Seamans, 9 Wall. 254; Emerson v. Slater, 22 U. S. 42; Harvey v. Graham, 5 Ad. & El. 529; Gross v. Nugent, 5 Barn. & Ald. 34; Eyers v. R. I. Co., L. R. [8 Exch.]315; Shapley v. Abbott, 42 N. Y. 447.) A contract under seal cannot be changed or modified before breach by an oral agreement without consideration. (Eddy v. Graves, 23 Wend. 81; Dodge v. Crandall, 30 N. Y. 306, 307; McKenzie v. Harrison, 120 N. Y. 263.) The ruling of the court upon the defendants' offer cannot be impeached upon the ground that the offer was to prove an estoppel. An estoppel can only be based upon the assertion or admission by one party of the existence of a fact, upon which assertion or admission the other party relied and acted. (Dezell v. Odell, 3 Hill, 216; Plumb v. C. M. Ins. Co., 18 N. Y. 395; Shapley v. Abbott, 42 N. Y. 447;

N. Y. Rep.]

Opinion of the Court, per ANDREWS, Ch. J.

White v. Ashton, 51 N. Y. 285; Griswold v. Haven, 25 N. Y. 608; Springstein v. Powers, 3 Robt. 485.) The doctrine of waiver has no applicability to the case. (Shapley v. Abbott, 42 N. Y. 451.)

ANDREWS, Ch. J. It was assumed by both parties on the argument that under the case of Green v. Armstrong (1 Den. 550) the contract of April 1, 1885, for the sale by the plaintiff to the defendants of the bark on the hemlock trees on the "Harris" lot, to be peeled by the purchaser, was a contract for the sale of an interest in lands required by the Statute of Frauds to be in writing. We shall determine the case upon this assumption without examination of its correctness. (See Nettleton v. Sikes, 8 Met. 34.) The contract was in fact in writing, and its validity is not questioned. The stress of the argument at the bar related to the competency of the evidence offered by the defendants to prove the oral modification of the original contract, made in the fall of 1885, by which the plaintiff, on the request of the defendants, consented on the condition that it was made satisfactory to Wakeley, the contractor with the plaintiff to do the lumbering on the lot, to reduce the amount of bark to be peeled by the defendants during each of the years subsequent to 1885 to 500 cords per year. The plaintiff's counsel, in support of his objection to the competency of the evidence (which was ruled in his favor by the trial judge), relies upon the general principle that a written contract, falling within the Statute of Frauds, cannot be varied by any subsequent agreement of the parties unless such new agreement is also in writing. The further objection that a sealed contract, irrespective of its character, cannot be changed by a subsequent parol executory agreement under the maxim quodque dissolvitur eodem ligamine quo ligatur, and the objection that the consent of the plaintiff to reduce the quantity of the bark to be peeled in each year was conditional, will be referred to after considering the objection founded upon. the Statute of Frauds.

In disposing of this objection it is important to notice that

Opinion of the Court, per ANDREWS, Ch. J.

[Vol. 147.

the controversy in the present action relates solely to the performance of the contract of April 1, 1885, as respects the year 1886. By that contract the defendants were to peel in that year not less than 1,000 cords. In fact they peeled only 500 cords, and they allege as an excuse for not peeling the full 1,000 cords in that year, the oral agreement made in the fall of 1885. The effect of the oral agreement if made and valid as a contract was to change the terms of the original written agreement as to the time and manner of performance. It did not diminish the aggregate amount of bark to be peeled and taken by the defendants, but it extended the time within which it was to be peeled and taken to double the time fixed by the original contract and as a necessary incident extended the right of entry for the same period, and meanwhile during such extended period, by natural growth of the trees, bark might be brought within the sale, which otherwise would not come within the contract. If we were now required to decide the question whether a contract in writing within the Statute of Frauds can be altered as to the time of performance by a subsequent oral executory agreement made between the parties upon sufficient consideration, we should find the question under the authorities involved in distressing perplexity. It is now the settled doctrine of the English courts, contrary to the earlier rule declared in Cuff v. Penn (1 M. & S. 21), that such a contract cannot be changed as to the mode or time of performance by an oral executory contract. (Stead v. Dawber, 10 Ad. & El. 57; Hickman v. Haynes, L. R., 10 C. P. 598.) In many of the states in this country the courts have adopted the rule laid down by Lord ELLENBOROUGH, in Cuff v. Penn (supra), and have held such proof admissible on the distinction between the contract which it was said the statute requires to be in writing and its performance, to which the statute does not apply. This is the rule in Massachusetts, New Hampshire, Maine, Ohio and Pennsylvania, and, perhaps, other states. The cases are referred to in a note in Wood on Frauds (p. 758). In this state the rule does not scem to be authoritatively settled. In Blood v. Goodrich (9 Wend. 68),

N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J.

Ch. J. SAVAGE expressed the opinion that the time of performance of a written contract for the sale of land could not be enlarged by parol, but the case was decided on another ground. There are dicta in this court and some decisions in other courts of the state to the contrary. (Blanchard v. Trim, 38 N. Y. 225; Flynn v. McKeon, 6 Duer, 203; Stone v. Sprague, 20 Barb. 509.) But we deem it unnecessary to determine this important question here, for the reason that, without disputing the doctrine contended for by the learned counsel for the plaintiff, that the oral agreement sought to be proved was inadmissible to change the terms of the written contract, it was competent to establish, in connection with other facts offered to be shown, a waiver by the plaintiff of the requirements of the original contract that the defendants should peel 1,000 cords of bark in 1886, which had been acted upon and become executed by the lapse of time before the commencement of the action. We know of no principle of law which will permit a party to a contract, who is entitled to demand the performance by the other party of some act within a specified time and who has consented to the postponement of the performance to a time subsequent to that fixed by the contract, and where the other party has acted upon such consent and in reliance thereon has permitted the contract time to pass without performance, to subsequently recall such consent and treat the non-performance within the original time as a breach of the contract. The original contract is not changed by such waiver, but it stands as an answer to the other party who seeks to recover damages for non-performance induced by an unrecalled consent. The party may, in the absence of a valid and binding agreement to extend the time, revoke his consent so far as it has not been acted upon but it would be most inequitable to hold that a default, justified by the consent, happening during its extension, should furnish a ground of action. It makes no difference, as we conceive, what the character of the original contract may be, whether one within or outside the Statute of Frauds. The rule is well understood that if there is forbearance at the