
    [No. 19504.
    Department Two.
    November 23, 1925.]
    John Kupka, Respondent, v. Dan Sanders et al., Appellants.
      
    
    Frauds, Statute of (17) — Contracts Relating to Real Property — Sale of Timber. Where timber has been felled by the purchaser, it is personal property, and the seller’s approval of a resale to another, and also his contract extending the time for its removal from the land, do not relate to real property and are not within the statute of frauds.
    Evidence (172) — Parol Evidence to Vary Writing — Subsequent Agreement — Oral Modification. While a written contract may not be varied by parol evidence, it may be modified by a subsequent oral agreement, waiving or extending the time for performance.
    Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered February 21, 1925, upon findings in favor of the plaintiff, in an action on contract, tried to the court.
    Affirmed.
    
      Bates & Peterson, for appellants.
    
      Leo Teats and Ralph Teats, for respondent.
    
      
       Reported in 240 Pac. 905.
    
   Mackintosh, J.

— As we read the statement of facts, they confirm the findings made by the superior court to the effect that, on June 2,1922, the appellant Sanders was the owner of standing timber located in Pierce county, and that, on that day, Sanders sold the timber to one Garbrick; that this sale was made by a written instrument in which no time is set for the removal of the timber; that the respondent, prior to December 10, 1923, purchased the timber from Garbrick; that Sanders knew of this sale and approved of it; and that, prior to December 10, 1923, the respondent had gone upon the premises and felled all of the timber and bucked it into saw logs; that, on December 10, 1923, Sanders extended the time of the removal to the 10th day of June, 1924; that this extension was evidenced hy a writing and was made upon a consideration of the sum of $100 which the respondent paid to Sanders ; that, during December, 1923, and the year 1924 up to and including the month of May, the respondent was prevented by the county commissioners of Pierce county from removing the timber over the county road adjacent thereto, though the ^respondent constantly sought permission to use the road for the hauling of the timber; that, on June 10, 1924, the respondent went to Sanders for the purpose of obtaining a further extension of time for the removal of the timber; that Sanders agreed to extend the time sixty days in consideration of $100, to be paid by the respondent at the time he should remove the timber; that on June 12,1924, without notifying respondent, Sanders sold all the timber to the appellants Skjelkvale and Waltenberg, who, on June 14, 1924, sold the timber to appellant Inglis, who removed the timber from Sander’s land; that, prior to June 10, 1924, the respondent had all but closed'a deal for the sale of the timber to the appellant Inglis; that the respondent was the owner of the timber and that the appellants converted it to their own use.

Prom these findings, the court concluded that the respondent was entitled to judgment for the value of the timber. Prom the judgment based upon these findings and conclusions in favor of the respondent, the appellants have prosecuted this appeal.

The major portion of appellants’ argument is directed. to the point that the oral extension of June 10, 1924, was invalid for the reason that it violates the statute of frauds, the claim being that the contract was originally for the sale of standing timber, which, under the statute of frauds, must be in writing, and that any contract modifying it must also be in writing. McInnis v. Watson, 116 Wash. 680, 200 Pac. 578; Allen & Nelson Mill Co. v. Vaughn, 57 Wash. 163, 106 Pac. 622.

As we view the facts, however, in this case the statute of frauds is not involved. The contract of December 10, 1923, between the respondent and Sanders was, at the time it was made, a contract relating to timber which had already been cut, and therefore involved no interest in real property, as timber severed from the land is personal property; and there was no necessity, therefore, of this contract having been in writing. The contract of June 10, 1924, was, also, a contract which did not relate to real property and the necessity for a writing, in order to satisfy the requirements of the statute of frauds, did not exist. It was a contract relating to personal property, based upon a valuable consideration, and gave the right to the respondent to remove the timber within sixty days from the date that it was entered into; and under it the appellants had no right during that time to take possession of the respondent’s property and convert it to their own use. If, however, the view is taken that the contract of June 10, 1924, was but a modification of the December 10, 1923, contract, still the latter contract was perfectly valid, though oral.

This court in Whiting v. Doughton, 31 Wash. 327, 71 Pac. 1026, has said:

“It is true, a written agreement may not be varied by contemporaneous oral agreements alleged to have been made at the same time. . . . But this does not preclude a modification thereof orally, made at a subsequent time when the parties may, by new agreement, mutually assent to such modification. ”

The opinion then quotes with approval the following from 1 Beach, Modern Law of Contracts, § 781:

“The time of performance of a written contract may be waived as well as extended by parol.”

Therefore, under either view that may be taken of the nature of the contract of June 10, 1924, it is without the operation of the statute of frauds', and the superior court was correct in sustaining its validity and in concluding that the respondent is entitled to the value of the personal property wrongfully converted.

The judgment is therefore affirmed.

Tolman, C. J., Parker, Main, and Mitchell, JJ., concur.  