
    Lemon Thomson, App’lt, v. John O. Poor et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Contract — Evidence—Oral agreement to vary written contract.
    Defendants entered into a contract under seal wi h plaintiff by which they purchased all the hemlock bark on certain land and agreed to peel and pay for 1,000 cords annually. Held, that an alleged' oral agreement subsequently made, by which they were to be allowed to peel only half tnat quantity annually, was inadmissible to vary the terms of the contract.
    3. Same — Estoppel.
    Plaintiff is not estopped by what took place from demanding full performance, as defendants were not injured thereby. Peeling half as much bark as they agreed did not prevent them from peeling and taking the whole.
    Appeal from judgment in favor of defendants, entered on verdict, and from Order denying motion for a new trial.
    
      Isaac Lawson, for app’lt; I). 8. Potter, for resp’ts.
   Learned, P. J.

This is an appeal from a judgment on a verdict in favor of defendants and from an order denying a new trial.

The complaint sets out at length a sealed contract between plaintiff and defendants, dated April 1, 1885, for the sale to them at a certain price of hemlock bark on trees, of a certain specified size, in a certain lot; the bark to be peeled by them, 1,000 cords in each year after the first; the timber to be cut and piled by the plaintiff in the same year in which the bark is peeled.

The complaint charges that in the year 1886 the defendants peeled 935f cords; took a part thereof, but refused to take the remainder, and asks judgment for a certain sum.

The answer, with some denials, avers a modification of the contract to the effect that defendants were required to peel only 500 •cords instead of 1,000 in that year; that they peeled that amount .and paid therefor.

On the trial the plaintiff proved the contract He proved that defendant peeled in 1886 500 cords and paid therefor; that he directed the same man who had peeled for defendants to peel more; that 435 7-8 cords more were peeled.

The plaintiff then rested. The defendants moved for a non-.suit on the ground that the action was not for a breach of the contract, but for not paying for a part of the bark which defendants had peeled. The non-suit was refused.

It seems to us that the complaint is not well framed to set forth the real matter in issue. But considering that the real controversy appears in the answer and that the complaint might be easily amended to suit the evidence, we think it better to pass to the important question between the parties.

It will be seen that the plaintiff was the owner of the lot in ■question, and that he was engaged in lumbering from the lot It was the bark only which he sold to defendants. This bark should be removed before the trees were felled fa% lumbering. The same man, Wakeley, seems to have been employed at both kinds of work on the lot; peeling the bark and felling the timber. Wakeley had a contract with plaintiff dated August 3, 1885, to fell the trees, which, work was to be done “ in such manner as to comply with the-agreement for peeling and selling the hemlock bark.” .

The bark contracted for by defendants was to be used in their tannery. This tannery burned- July 6, .1885. After this their agent, Wait, called on plaintiff in November, 1885, and had a' conversation with him. The versions given by Wait and by the plaintiff differ. The jury having found for defendants, they are entitled to have the version of Wait taken as correct. The important part is that, -after mentioning the fire, Wait said defendants had to get the contract reduced if possible in order to sell' the bark to other parties; that Wakeley was there as a jobber and needed something to do; that if they could reduce the amount to 500 cords, they could make arrangements; that plaintiff said any arrangements they could make with Wakeley would be satisfactory to him. There were two conversations, but this was the substance. Wait knew that Wakeley had the job from plaintiff to take off the logs.

The plaintiff insists that this alleged verbal agreement was inadmissible -to alter the terms of the sealed agreement between the parties. That is the important question.

It should be noticed, however, that the plaintiff explains the conversation thus: that he said he would be willing to accommo- ■ date defendants in any way he could, but the only embarrassment he had was the contract he had with Wakeley; that if they could make it satisfactory to Wakeley, he would do what defendants wished; that is, that the plaintiff would consent to reduce the number of cords to be peeled annually, if defendants could induce Wakeley to modify, in a corresponding manner, his contract of August 3, 1885, for felling the trees.

The defendants afterwards, on-February 26, 1886, made a contract with Wakeley to peel 500 cords each year, or more if they elected, to the amount of 1,000 cords each year. As by the terms of the written contract the defendants were to peel 1,000 cords each year, it is plain that their agreement with Wakeley to peel 500, or more if they elected, up to 1,000, was not any greater or other act than they were obliged to do by the original contract. Therefore their agreement with Wakeley gave no greater validity to the alleged verbal agreement between the plaintiff and Wait, than it would have had if the plaintiff, at Wait’s request, had agreed to reduce the annual amount to 500 cords. No new obligations were undertaken or acts done by defendants in consequence of the verbal agreement which they would not have had to undertake and do under the written contract.

In regard to the verbal modification it will be seen that, if valid, it doubled the time within which the sealed contract was to be performed, and within which defendants had the right to enter the lot; and as the sale was of bark on trees of a definite size, the growth of the trees might bring the bark on other trees into the sale than those included in the original contract

It does not seem to be disputed that a sale of bark on growing trees is a- sale of an interest in lands, and must be in writing. Green v. Armstrong, 1 Den., 550, at 556.

“ The better opinion,” say the court, in Swain v. Seamens, 76 U. S., 254, at 272, “ is that a written contract falling within the statute of frauds cannot be varied by any subsequent agreement of the parties unless such new agreement is in writing.” See Emerson v. Slater, 63 U. S., 28, at 42.

There are cases like Homer v. Guard. Mut. Life Ins. Co., 67 N. Y., 481, where one party, by agreeing to extend the time for a payment, has induced the other to neglect payment at the appointed day, and it has been held that'the former could not take advantage of the neglect. But such cases are not like the present

So, also, there are cases like Dodge v. Crandall, 30 N. Y., 306, where, for a valuable consideration paid by the debtor, a person buys a mortgage already payable and agrees to extend the time of payment. Such cases are not like the present. The contract was between new parties, and the original contract had been broken. But it was said in the case last cited that, before any breach and when the subsequent agreement is executory, it requires a writing of equal solemnity to effect a change in a contract under seal. So it was held in Eddy v. Graves, 23 Wend., 84, referring to Allen v. Jaquish, 21 Wend., 628. See also Chitty on Contracts, 11 Am. Ed., vol. I, 155; Addison on Contracts, 8th ed., vol. II, 894.

The alleged change in the contract in the present case was very material; was executory; was before any breach of the contract had arisen; was verbal, and purported to affect a writing which, unless in writing, would have been void. It, therefore, came most strikingly within the prohibition. And we may well inquire if the original contract must have been in writing in order to be valid, by what logic can a material change, executory in character, be made verbally ? To permit such a change thus to be made is to violate'hdirectly the statute of frauds. If A. contracts in writing to sell B. blackacre, may B. prove a subsequent verbal agreement modifying the contract so that A is made to contract to sell whiteacre also ? Or, to make the case more analogous to the present, may B. prove a subsequent verbal agreement that he is to buy only half of blackacre ?

The very evil at which the statute was aimed appears in this case. The parties disagree as to the alleged verbal agreement; and in place of a written contract clearly expressing their meaning, we are left to the conflict between conflicting recollections of a brief conversation.

The defendants also insist on the doctrine of estoppel. How, if the plaintiff were asserting that the defendants had forfeited all their rights under the contract for some failure to perform, and they could show that some act of the plaintiff had induced them to neglect performance, then there would be a place for the doctrine of estoppel. But the plaintiff asks no forfeiture of the contract. He insists that the defendants should perform it and should have all its benefits. They say the contract was changed by verbal agreement and we performed the contract as changed. That is, instead of performing the contract to its fullest extent, they performed it only half way. There is no estoppel here. Peeling half as much bark as they agreed does not prevent them from peeling and taking the whole.

The defendants also urged that a party may waive a condition. Pechner v. Phœnix Ins. Co., 65 N. Y., 195. As, for instance, that notice of other insurance given to an insurance company may operate as a waiver by them of the statement of such other insurance in the policy. That is, the company shall not insist that the policy is void for failure to comply with a condition which they have waived. But as pointed out before, the plaintiff does not claim that this contract is void. He insists on its validity.

We think the judgment and order should be reversed and a new trial granted, costs to abide the event.

Landon and Mayham, JJ., concur.  