Albert Mackie & Co., Ltd. v. S. S. Dale & Sons

• Decision Date: 24 May 1920
• Docket Number: 21046
• Citation: 84 So. 453,122 Miss. 430
• Parties: ALBERT MACKIE & CO., Limited, v. S. S. DALE & SONS
• Court: Mississippi Supreme Court

84 So. 453

122 Miss. 430

ALBERT MACKIE & CO., Limited, v. S. S. DALE & SONS

No. 21046

Supreme Court of Mississippi

May 24, 1920

March 1920

APPEAL from the circuit court of Jefferson Davis county, HON. J. T GARRAWAY, Special Judge.

1. EVIDENCE. In action for breach of written contract a parol waiver of a stipulation may be pleaded and proved.

The defendant in an action for damages for the alleged breach of a written contract may plead and prove as a defense a parol agreement to waive a particular provision of the contract and a performance or offer to perform in accordance with the parol understanding.

2 EVIDENCE. Parol evidence admissible to prove parties' assent to a substituted mode of performance.

In a suit upon a written contract, it is competent for the defendant to introduce parol evidence to prove, not a substituted contract, but the assent of the parties to a substituted mode of performance of the original contract when performance is completed.

3. FBAUDS, STATUTE OF. Strict performance of written contract may be waived by a parol understanding.

Strict performance of a written contract within the statute of frauds may be waived by a parol understanding or by words and acts inconsistent with an intention to require performance.

ETHRIDGE. J., dissenting.

HON. J T. GARRAWAY, Special Judge.

APPEAL from the circuit court of Jefferson Davis county, HON. J. T. GARRAWAY, Special Judge.

Action by Albert Mackie & Co., Limited, against S. S. Dale & Sons. Verdict and judgment for defendant, and plaintiff appeals. Affirmed.

Hathorn & Rawls, for appellant.

Whether contracts in general may be modified or rescinded by mutual parol agreement. While we do not agree with appellee in his views expressed in his brief on this question, we shall refrain from an argument on it here for the reason that it is not germain to the issue. The contract sued upon and, attempted here to be varied, or modified by parol is within the statute of frauds and the rules of law announced under the last heading of his brief do not attempt to deal with contracts coming under the statute of frauds.

The second heading is more to the point at issue between us. II. Written contracts required to be in writing by the statute of frauds may be modified by subsequent parol agreement in certain cases. Appellee's citation from 20 Cyc., par. 287, is misleading as he does not quote the entire paragraph (F).

As an illustration of oral agreements which do not in themselves constitute a contract within the statute Cyc., adds (2) to paragraph (F) quoted from by appellee which reads as follows: (2) "Agreement changing time of performance. There is considerable authority for the proposition that the time of the performance of a written contract within the statute cannot be changed by parol. It will be found, however, upon an examination of the cases that if the oral agreement is merely for a change of the time of performance, and does not, in effect, amount to a rescission of the original contract and the making of a new one within the statute, it is valid, and, if it does in itself constitute a contract within the statute, it is valid."

It will be noted that even those cases which hold that subsequent parol agreements are admissible, confine these agreements in every case to the performance of the original agreement, and that oral agreements which attempt to vary or modify the essential or necessary terms of the contract are not admissible.

In a great many jurisdictions time of delivery is not an essential in a contract under the statute of frauds for, say these jurisdictions, if no time is fixed in the contract, the law implies and imposes a performance within a reasonable time.

And some courts go so far as to say that the price need not necessarily be stated, as in the absence of a stated price it will be presumed that there is a promise to pay a reasonable price, and our own court has held in the case of Willis v. Ellis, 53 So. 498, that no place of delivery need be stated in the writing, since, in the absence of such stipulation, the law fixes a place of delivery. But in no jurisdiction has it ever been held that quantity is not an absolutely and necessary essential of the contract or bargain under the statute.

The great majority of our courts hold that none of the terms of a contract required to be in writing under the statute of frauds can afterwards be changed or modified by parol, after once having been incorporated into the contract, whether the terms attempted to be changed would have been essential to the contract under the statute or not, on the theory that under the statute, the contract must be written and since we must look to the written contract, we can only look to it alone, and cannot look to it and to a subsequent parol agreement changing any of its terms, and this on the theory that the very moment you look to any subsequent parol agreement changing your written contract as has not been changed by parol, and under the law this becomes an entirely new parol contract. In other words no contract can rest partly in parol and partly in writing, for if the parol is prior to the writing, the law says it is merged into the writing, and if it is subsequent to the writing, the writing is merged into the parol agreement. 13 C. J. page 246, par. 13.

"A written contract is one which, in all its terms, is in writing. A contract which is not entirely in writing is regarded as an oral or verbal contract." 13 C. J., page 304, par. 127.

"An agreement may be partly in writing and partly by word of mouth; such an agreement is to be treated as an oral contract." 13 C. J., page 592, par. 607. "A modification of a contract, being a new contract, a consideration is necessary to support the new agreement. As, for example, where it is intended to extend the time of performance or payment, etc." 13 C. J., page 597. Parol modification of sealed contract. "Where a contract under seal is altered by parol it becomes all parol." 13 C. J., page 596. "Where a written contract is modified verbally, the entire contract becomes an oral one."

We have examined quite a number of those cases cited by appellee under his second heading, and none that we have examined are authority for the holding of the lower court in the case at bar.

The case of Cummings v. Arnold, 37 Am. Dec. 155, merely holds that time for performance could be changed, and this holding as well as the reasons advanced by the court for the holding is condemned in a great number of decision, but see especially Ladd v. King, 51 Am. Dec. 627.

The question of the statute of frauds was neither raised nor was it an issue in the case of Bryan v. Hunt, 70 Am. Dec. 262, cited by appellee. Bank v. Davidson, 57 L. Ed., (U.S.) 1153, cited is a case involving an oral extension of time, but is not at all in point.

The case of Boyd v. Kelley, 71 So. 897, cited, is also a case of extension of time, for the payment of a note and the statute of frauds was not involved. This case, however, supports our contention that the alleged oral modification of May 26th, constitutes a new parol contract, for says Mr. Justice COOK, quoting from 7 Cyc. 898: "It is well settled that time of payment of a bill or note may be extended by oral agreement, as this does not in any way, violate the rule excluding parol evidence to contradict, add to, or vary a written contract, the evidence not being admitted for this purpose, but to prove a new agreement." Besides the note sued upon, being merely a contract for the payment of money at a fixed time, need not have been in writing in order to have been a valid contract.

The case of Kelly v. Skates, 78 So. 945, cited, throws no light on the case now before the could. In that case the court merely held that under the statute of frauds either section, 4780 or 4781, under one or both of which the case would fall, a place of sale need not be stated at all, and that "The agreement questioned was certainly not a contract for the sale of lands and was not a declaration of or a creation of any trust or confidence in any land." The deed of trust would have been good, even if silent as to a place of sale; but the contract between appellant and appellee could not be sustained if it were silent or even uncertain as to the quantity of potatoes contracted to be sold.

Now as to appellee's third heading.

III. Parties to a written contract under the statute of frauds may mutually waive provisions of the contract by subsequent parol agreement. Conceding that appellee is right in the above statement, it throws no light on the case now under consideration. It is not a question of a waiver of the statute of frauds. Appellant has certainly never waived the statute by any word or act of his. He has insisted, all the time on his contract made as required by law, and none of appellee's citations or quotations are in point as they all point to manner of performance and not to essential terms of the contract. We respectfully submit that the case of Swain v. Seamans, cited by us in our original brief and quoted from by appellee under heading III does not hold what appellee makes it appear by his quotation that it does.

His heading IV. Where parol agreement subsequent to written contract under statute of frauds is acted upon by one party, the other party is estopped to set up the original contract and plead the statute against the parol agreement, under this heading appellee cites 20 Cyc. 308.

Appellee cites 13 C. J. 614, page 595. This paragraph reads "Parol agreement acted upon, and in this country it is almost universally held that where a contract under seal has been rescinded or modified or altered by a subsequent parol agreement, and this new agreement has been executed, the parol...