Kingston v. Walters

• Decision Date: 01 February 1911
• Citation: 113 P. 594,16 N.M. 59,1911 -NMSC- 009
• Parties: KINGSTON et al. v. WALTERS.
• Court: New Mexico Supreme Court

113 P. 594

16 N.M. 59, 1911 -NMSC- 009

KINGSTON et al. v. WALTERS.

Supreme Court of New Mexico

February 1, 1911

Syllabus by the Court.

The time of performance of a written contract within the statute of frauds may be enlarged by a subsequent oral agreement.

If one who is entitled to a payment within a time fixed by a written agreement between himself and others for the sale of real estate, assures those who are to make the payment, before it becomes due, that they can have a longer time within which to make it than that stipulated in the agreement and they relying on that assurance, fail to make the payment within such stipulated time, the payee is estopped from claiming a breach of the agreement because of such failure.

Appeal from District Court, Chaves County; before Justice M. C Mechem.

Action by J. H. Kingston and W. D. Mahoney against J. W. Walters. Judgment for plaintiffs, and defendant appeals. Affirmed.

Reid & Hervey, for appellant.

D. D Temple and Nisbet & Nisbet, for appellees.

ABBOTT J. (after stating the facts as above).

It is made clear by the evidence that, after giving the plaintiffs the memorandum in question, the defendant did orally agree that they might have more than 15 days for making the next payment required. The evidence is conflicting as to the number of days additional he agreed to give, but there was evidence which would have warranted the jury in finding that it was as many as 10 days, which would have ended September 5th. Before September 5th the defendant had refused to receive the $100 telegraphed him, on the ground that it came too late. If, then, the verbal agreement of the defendant to extend the time fixed by the written memorandum for making the second payment was valid, the verdict of the jury should stand, otherwise it should not.

This is the second appearance here of this cause, and the decision of this court in 14 N.M. 368, 93 P. 700, holding, in effect, that a subsequent verbal modification of the time of performance fixed by a written agreement for the sale of real estate will be regarded, in a court of equity at least, as valid, must stand as the law in this case, and we think the doctrine need not be limited to equity. It is stated in 20 Cyc. 287, that "an oral agreement for an extension of the time of performance of a written contract within the statute of frauds, which does not, in effect, amount to making a new contract within the statute, is valid." And this view is sustained in Smith v. Loomis, 74 Me. 508; Stearns v. Hall, 9 Cush. (Mass.) 31; Whittier v. Dana, 10 Allen (Mass.) 326; Donovan v. Richmond, 61 Mich. 467, 28 N.W. 516.

But, in addition to what was then considered by the court, there is now before us the evidence from which it clearly appears that the defendant should be estopped to set up the defense that the plaintiffs did not make the payment of $200 within 15 days, as provided for in the written agreement, when they had his assurance, on which they relied and acted, that they might take more time. Where a...