Elkins v. Aliceville

Hart, J., (after stating the facts). Contracts may he made hy letters and telegrams, and, when so evidenced, it is the duty of the trial court to interpret the contract and declare its terms. Mann v. Urquhart, 89 Ark. 239; Cage v. Black, 97 Ark. 613; Porter v. Gossell, 112 Ark. 380; Hart v. Hammett Grocer Co., 132 Ark. 197; and Mantle Lamp Co. v. Read, 160 Ark. 355. The principles of law decided in these eases are recognized as controlling by counsel for the plaintiff, 'but he claims that under the original contract the time for performance expired at the end of sixty days, and that after this time the plaintiff was under no legal obligation to take the bonds. In carrying out and applying the rule of law above announced, the parties to a contract may modify'or waive their rights under it and engraft new terms upon it by letters, and in such case the promise of one party is the consideration for that of the other. In other words, a contract may be varied by the parties before performance for the reason that the power to enter into the contract equally authorizes them to abrogate nr modify it, and this right to change or modify the contract equally extends to a change in the time of performing it. Parmelee v. Thompson, 45 N. Y. 58, 6 Am. Rep. 33. It will be noted from the letters quoted and referred to in our statement of facts that, after the expiration of the sixty days, Elkins treated the contract as continuing in force, and finally secured a change in its terms by proposing to accept the bonds at a lower price and pay the attorney’s fees, which proposal was accepted by the town of Aliceville. Subsequently, on May 3,1923, Elkins wrote to the town of Aliceville a letter in which he stated that the maturities of the bonds to be issued were satisfactory to him, and that he was ready to take up the bonds as soon as Wood & Oakley gave their final opinion. Thus he recognized that the modified contract was still in force, and their correspondence shows that the town of Alice-ville, in reliance upon his letters, proceeded with the matter, had the bonds printed and signed by the proper authorities, and secured the approving opinion of Wood & Oakley in June. There is no rule of law forbidding the relinquishment of an existing contract and the substitution of a new one in its stead, and that is what was done in the ease at bar. Under the original contract, Elkins was to give the town of Aliceville 98 cents on the dollar for the bonds issued by it." Under the substituted agreement he was to give the town 96 cents on the dollar for the bonds and to pay the attorney’s fees for examining them. It is well settled that the parties to a contract may at any time rescind it in whole or in part by mutual consent, and the surrender of their mutual rights and the substitution of new obligations is a sufficient consideration. Ozark & Cherokee Central Railway Co. v. Ferguson, 92 Ark. 254, and Cook v. Cave, 163 Ark. 407 and cases cited. The town of Aliceville, by agreeing to take a less sum for the bonds, and Elkins by extending the time for securing’ the approval of the bonds by the town of Alice-ville, waived performance of the contract as originally made,- and the parties substituted a new agreement in its place. The mutual promises of the parties in respect to the substituted agreement constituted a good consideration for its execution. It follows that the decree will be affirmed.