
    James Stearns vs. Adin Hall.
    Evidence is admissible, to show that the time of performance of a written contract within the statute of frauds, has been enlarged by a subsequent oral agreement.
    This was an action of assumpsit, with the usual money counts, on the following written agreement, under date of “ Boston, May 20,1843,” addressed to the plaintiff and signed by the defendant: “Sir, — I will sell you the house No. 42 Myrtle street, on the 1st day of October next, if you will pay what it has and may cost me, with my charges for the same.”
    The case was tried in this court at the March term 1850, before Fletcher, J., and reported by him.
    At the trial, the plaintiff gave in evidence the above agreement and a deed of the same premises from himself to the defendant, dated April 29,1843. He also offered several letters written to himself by the defendant, the admission of which, though objected to by the defendant, was allowed by the presiding judge. The following witnesses were then called by the plaintiff and were allowed to testify, notwithstanding the defendant’s objection.
    Edmund Hooper testified, that he carried letters between Mr. Steams and Hall, when Stearns was in jail, and was present when the deed was made. Hall was to act as agent, and Stearns was to have his house back on paying Hall what he paid Mr. Dexter, and for repairing the house and his commission in six months. Stearns wished Hall to give him a wri ting to this effect. Hall said he would not give him one there in jail, but that he would give him a writing, if he would call at his office when he came out. Stearns thereupon executed the deed. He came out of jail that day.
    Enoch Martin testified, that Mr. Stearns employed him to sell the house. I called on Hall about a week before the time mentioned in the written contract was out. Hall said we need not,distress ourselves ; and if we could find a purchaser within thirty days, he would convey the estate. I got Mr. Richards. I brought Richards and Stearns together. Stearns at first refused Richards’s offer. Richards afterwards informed me that Stearns had accepted his offer, and wished me to see Hall. I told Hall, Richards had bought the estate. I called on Hall for a deed. He said Stearns had not been there. I called again, and he said he could not get a settlement with Stearns, and he would do no more about it. Hall gave further time; I think thirty days. I got Richards within the time, and notified Hall. I don’t recollect the exact time.
    Reuben Richards testified, that he purchased the estate of Mr. Stearns, for about $5,000. I purchased it through Mr. Martin. Hall delivered this deed (the deed drafted by Hall, dated October 9, 1843, and not signed, being shown to the witness) to me. I called on him with the money in my hand Mr. Stearns was with me. Mr. Hall replied, he should do no more about it. I thought I had got a good bargain. Hall refused absolutely to do any thing about it. This was in October, 1843, about the date of the deed Hall drafted. I think I earned $5,000 in money. I presume I told Mr. Hall I was prepared to pay him the money, as I went for that purpose. When I went to pay the money, Stearns was with me.
    The defendant introduced no evidence, but contended that the evidence of the plaintiff contravened the statute of frauds, and was not admissible by the rules of evidence. But the judge ruled that it was admissible, and did not contravene the statute of frauds.
    The case, thereupon, was taken from the jury, by consent oí parties, to be reported to the full court; if the court shall be of opinion that the ruling was right in point of law, and if the evidence was competent to go to the jury to maintain the plaintiff’s case, the defendant to be defaulted and an assessor appointed to ascertain the amount the plaintiff shall recover under such rules and instructions as the court shall give; otherwise, the plaintiff to be nonsuited, or the case sent to a jury for trial, as the court shall deem the rights of the parties require.
    
      E. M. Bigelow, for the plaintiff.
    1. The evidence establishes the fact, that the time of performance fixed in the written contract was waived or extended, and that, within the extended time, the plaintiff offered to do, and did, all that was required of him.
    2. The terms of a written contract may be varied by a subsequent parol contract, though the original contract falls within the statute of frauds. Rev. Sts. c. 74. Cummings v. Arnold, 3 Met. 486, and cases there cited; Cuff v. Penn, 1 M. & S. 21; Blood v. Hardy, 3 Shepley, 61, and cases cited; Borden v. Borden, 5 Mass. 69; Sivan v. Drury, 22 Pick. 485 ; 1 Greenl. Ev. § 304, and cases cited ; JVP Combs v. McKennwn, 2 Watts & Sergeant, 216; Fleming v. Gilbert, 3 Johns. R. 528; 3 Starkie Ev. 1050; Coke Lit. § 343 et seq.; Keating v. Price, 1 Johns. Cas. 22; Ratcliff v. Pemberton, 1 Esp. R. 35.
    
      C. A. Welch, for the defendant.
    Where the original contract is for the sale of lands, and thus within the first section of the statute of frauds, and is subsequently varied in its terms by a parol contract, a party cannot be held liable for a breach of the contract as thus varied. Goss v. Nugent, 5 B. & Ad. 58; Stowell v. Robinson, 3 Bingham, N. C. 928; Stead v. Dawber, 2 Perry & Davison, 447; Marshall v. Jjynn, 6 M. & W. 109; Blood v. Goodrich, 9 Wend. 68.
    This case is not within the principle decided in the case of Cummings v. Arnold, 3 Met. 486; because the defendant, in that case, merely relied upon the parol agreement, as a matter of defence to a suit brought on a written contract; and here the party relying on the parol agreement seeks to charge the defendant upon it in direct contravention of the statute. f
   Fletcher, J.

As a general rule, in a case of a simple contract in writing, oral evidence is admissible to show a subsequent oral agreement to enlarge the time of performance, or to vary any other terms of the contract, or to discharge and annul it altogether. This rule of law is well established by numerous authorities.

Whether or not this general principle is applicable at all, and if so, to what extent, to written contracts within the statute of frauds, is a question which has been frequently and largely discussed; and the adjudged cases uppn the subject, both English and American, are numerous and very conflicting. This conflict of decisions has occasioned much difficulty and embarrassment.

In the case of Cummings v. Arnold, 3 Met. 486, this subject was very fully considered, and the cases examined by this court. In that case the court say: “ The principal design of the statute of frauds was, that parties should not have imposed on them burdensome contracts, which they never made, and be fixed with goods which they never contemplated to purchase. The statute, therefore, requires a memorandum of the bargain to be in writing, that it may be made certain; but it does not undertake to regulate the performance. It does not say that such a contract shall not be varied by a subsequent oral agreement for a substituted performance. This is left to be decided by the rules and principles of law, in relation to the admission of parol evidence to vary the terms of written contracts. We have no doubt, therefore, that accord and satisfaction, by a substituted performance, would be a good defence in this action.”

The principle thus established is decisive against the de-fence in the present action.

In coining to the above decision, the court adopted the doctrine of the case of Cuff v. Penn, 1 M. & S. 21; in regard to which, after examining other cases, the court say: “ But the principle on which the case of Cuff v. Penn was decided is, in our judgment, more satisfactory, and better adapted to the administration of justice in this and similar cases.”

The case of Cuff v. Penn was substantially like the present case. That was an action of assumpsit against the defendant, for not accepting a quantity of bacon according to his written contract, which was within the statute of frauds. The defence to the action was, that the bacon was not delivered within the time specified in the written contract; to which the plaintiff replied, and proved that the time of delivery, expressed in the written contract, was extended by the parties by a subsequent oral agreement, and that the plaintiff tendered the bacon to the defendant within the substituted time. The court held that it was competent for the plaintiff to show that the parties, by a subsequent oral agreement, substituted a time for the delivery of the bacon different from that mentioned in the written contract, and that he delivered or offered to deliver it, within the substituted time, and the plaintiff had a verdict and judgment.

This rule, which was adopted by this court in Cummings v. Arnold, fully sustains the ruling at nisi prius in this case, and entitles the plaintiff to judgment. The present case strongly illustrates the propriety and necessity of the rule thus established. From the evidence in the case, it must be assumed that the plaintiff would have paid the money within the time limited in the written contract, if the defendant had not orally agreed to substitute another time, and the plaintiff, in fact, tendered the money within the substituted time.

The defendant, therefore, by his own act, by orally agreeing to receive the payment at another substituted time, prevented the plaintiff from making the payment within the time limited in the original contract. Though the plaintiff was ready, and offered to make the payment within the substituted time, yet the defendant, notwithstanding his oral agreement, refused to receive the money, and now sets up the nonperformance by the plaintiff within the time originally limited, which the defendant himself has by his own act occasioned, as a defence to the plaintiff’s claim in this action. This de-fence cannot be maintained.

The conclusion is, that the evidence offered by the plaintiff at the trial was admissible, and competent to go to the jury to maintain the plaintiff’s case; and the defendant, therefore, must be defaulted, and an assessor appointed according to the report, to ascertain the amount to which the plaintiff is entitled, for which judgment will be entered.

Defendant defaulted.  