Wesley v. Marsman

The judge found that the buyer had waived the sixty-day return of deposit provision and that the buyer had made no reasonable and good faith efforts to complete the sale within the time provided in the purchase and sale agreement. The buyer’s arguments are not focused, as they should be, on the judge’s rulings on requests for rulings and thus much of what is argued in the buyer’s brief is beside the point for the purposes of our appellate review. See Dist. Mun. Cts. R. Civ. P. 64 (c). Of the requests for rulings which the buyer argues are pertinent to her appeal, only one was denied. The judge mled that the evidence warranted a finding that a different contract was entered into after the original agreement, by the parties modifying its terms. The question of the subsequent agreement being unenforceable under the Statute of Frauds does not appear to be raised by any request for a ruling, but the judge volunteered, in response to [1004] the buyer’s motion to amend the judgment, that the buyer’s letter to the broker, her subsequent action, and silence about the refund of the deposit would satisfy the Statute of Frauds if it applied. Robert K. Cunningham, for the plaintiff, submitted a brief. There was evidence warranting the finding that the parties orally modified the terms of the original agreement concerning the return of the deposit. See Flynn v. Wallace, 359 Mass. 711, 715 (1971). It is a settled “principle that the mode of performance required by a written contract may be varied by a subsequent oral agreement based upon a valid consideration.” Siegel v. Knott, 316 Mass. 526, 528 (1944). See Moskow v. Burke, 255 Mass. 563, 567 (1926); Hurlburt v. Fitzpatrick, 176 Mass. 287, 290 (1900). Enforcement of that modified agreement was not barred by the Statute of Frauds. Order dismissing report affirmed.