Bowman v. Wright

• Decision Date: 22 July 1902
• Citation: 91 N.W. 580,65 Neb. 661
• Parties: BOWMAN ET AL. v. WRIGHT.
• Court: Nebraska Supreme Court

65 Neb. 661

91 N.W. 580

BOWMAN ET AL.

v.WRIGHT.

Supreme Court of Nebraska.

July 22, 1902.

Syllabus by the Court.

1. There is a clear distinction between parol modification of an executory written agreement before breach and before the time for performance has arrived and an attempt to satisfy a liquidated and accrued indebtedness by payment and acceptance of a less sum.

2. While executory, and before a breach, the terms of a written contract may be changed by a subsequent parol agreement; and such subsequent agreement requires no new consideration.

3. Where, however, the contract is one required to be in writing by the statute of frauds, there must be consideration for a modification by waiving some of its requirements, or else such new agreement must be executed.

4. In such case, if the terms of the new agreement have been fully carried out the original obligation is discharged, though there was no additional consideration.

5. Hence, a parol agreement, reducing for the future the rent stipulated in a written lease, is binding after the amount provided for in the new agreement has been paid and accepted in full during the whole term.

6. Making and accepting a new lease during the term of an existing one operates as a surrender and abandonment of the prior lease.

7. In order that a parol agreement to reduce the rent reserved in a written lease may have the effect of a surrender of the old and substitution of a new lease, there must be a new consideration.

8. Where the lessee has not covenanted and is not bound to remain in possession for any purpose, continuing in possession at the request of the lessor may be consideration for an agreement to reduce the rent.

9. An answer of a witness in a deposition is not to be stricken out because in answer to a proper question he gives the effect of a conversation, instead of the very terms thereof. If the other party desires to know what transpired in more detail, he should cross-examine.

Commissioners' opinion. Department No. 2. Error to district court, Douglas county; Keyser, Judge.

Action by Cyrus S. Bowman and others against W. L. Wright. Judgment for plaintiffs, and defendant brings error. Affirmed.

Will H. Thompson, for plaintiff in error.

Byron G. Burbank, for defendants in error.

POUND, C.

The heirs of a lessor brought this action against the lessee to recover a balance of $25 per month for 20 months upon a written lease. The lease provided for a rent of $75 per month, and it is alleged that but $50 per month was paid during the months in question. In the answer it is alleged that during the term of the lease it was surrendered and abandoned, and a new arrangement was made, whereby the defendant was to and did pay $50 per month as rent until the lessor's death, and thereafter to his representatives, which sum was accepted in full. Upon trial to the court, findings and judgment were entered for the defendant, from which error is prosecuted.

We think the conclusion reached by the trial judge was right. There is a clear distinction between parol modification of an executory written agreement before breach and before the time for performance has arrived and an attempt to satisfy a liquidated and accrued indebtedness by payment and acceptance of a less sum. At any time before breach, the parties may change the terms of a written contract by a subsequent parol agreement (Delaney v. Linder, 22 Neb. 274, 34 N. W. 630); and such subsequent agreement requires no new consideration (Morrissey v. Schindler, 18 Neb. 672, 26 N. W. 476;Brown v. Everhard, 52 Wis. 205, 8 N. W. 725;Ruedge v. Gates, 71 Wis. 634, 38 N. W. 181). As Lord Denman said in Stead v. Dawber, 10 Adol. & E. (Eng.) 57: “The same consideration which existed for the old agreement is imported into the new agreement, which is substituted for it.” In jurisdictions where sealed instruments are recognized, an executed parol modification will be upheld, even though the contract is under seal. Beach v. Covillard, 4 Cal. 315;Siebert v. Leonard, 17 Minn. 433 (Gil. 410); McClay v. Gluck, 41 Minn. 193, 42 N. W. 875;McCreery v. Day, 119 N. Y. 1, 23 N. E. 198, 6 L. R. A. 503, 16 Am. St. Rep. 793;McKenzie v. Harrison, 120 N. Y. 260, 24 N. E. 458, 8 L. R. A. 257, 17 Am. St. Rep. 638. With respect to agreements and instruments required to be in writing by the statute of frauds, the rule seems to be much the same. There can be no question that such agreements are subject to modification by parol. Delaney v. Linder, supra; Long v. Hartwell, 34 N. J. Law, 116; Doherty v. Doe, 18 Colo. 456, 33 Pac. 165;Andre v. Graebner, 126 Mich. 116, 85 N. W. 464. In Reynolds v. Railroad Co., 11 Neb. 186, 7 N. W. 737, this court held that, where the contract was within the purview of the statute of frauds, there must be consideration for a modification by waiving some of its requirements, or else such new agreement must be executed. But, if the terms of the new agreement have been fully carried out, the original obligation is discharged, though there was no new consideration. Rucker v. Harrington, 52 Mo. App. 481. This rule has often been applied to reductions of the rent reserved in written leases. Doherty v. Doe, supra; McKenzie v. Harrison, 120 N. Y. 260, 24 N. E. 458, 8 L. R. A. 257, 17 Am. St. Rep. 638;Nicoll v. Burke, 8 Abb. N. C. 213;Ossowski v. Wiesner, 101 Wis. 238, 77 N. W. 184. In McKenzie v. Harrison the court said the transaction was the same as if the lessee had paid each installment in full, as called for by the lease, and the lessor had voluntarily given him back the difference. But we need not resort to any circuitous explanation. So long as the...