Brown v. Everhard

Lyon, J. The proof is that the indorsement on the order for the book, “ If the sketch of Hr. Everhard should not be published, this order is void,” was written a few minutes after the-defendant signed the order, and it is quite apparent that it was so written before or simultaneously with the delivery of the order to the agent of the publishing company. The order and indorsement must therefore be regarded as containing the terms of the original contract, and all of them. If that contract remains in force, there seems to be no doubt of the right of the plaintiff to recover; for it was proved that the boob containing a sketch of the defendant was published and duly tendered to him, and that he refused to accept it or pay for it. 207 The evidence is sufficient to support the findings quoted in the statement of the case, to the effect that the contract was modified by a subsequent agreement entered into by the defendant and such agent, and that the defendant did not approve of the sketch inserted in the book. That agreement was not reduced to writing. If such subsequent agreement was binding upon the publishing company • — • if it worked a modification of the original written contract,— the plaintiff was not entitled to recover. The case turns, therefore, upon the question of the validity of the new agreement. We regard the rule as well established, that the terms and conditions of a written agreement, not required by the statute of frauds to be in writing, may subsequently be varied or qualified by the parties by a new agreement not reduced to writing. The rule is thus stated by Lord Denman, in Goss v. Lord Nugent, 5 Barn. & Ad., 58: “ After the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve or annul the former agreements, or in any manner to add to or subtract from, or vary or qualify, the terms of it, and thus to make a new contract, which is to be proved, partly by the written agreement and partly by the subsequent Yerbal terms engrafted upon what will be thus left of the written agreement.” Page 65. What the rule is in case the original agreement is required by the statute of frauds to be in writing, we need not determine, for this is not such an agreement. Obviously the above rule is not in conflict with that other rule, asserted in numerous cases in this court, that proof of an antecedent or contemporaneous verbal agreement between the parties cannot be received to alter or control their written agreement. See Hubbard v. Marshall, 50 Wis., 322, and the cases there cited. On the subject of consideration, it is sufficient to say, in the language of Lord Denman in Stead v. Dawber, 10 Ad. & El., 57, that “ the same consideration which existed for the old agreement, 208 is imported into the new agreement which is substituted for it.” Page 66. We conclude that the new agreement of the parties, as found by the court, is a valid contract, and modifies the original agreement to the extent that the defendant was not bound to receive and pay for the book unless it contained a sketch approved by him. Because the sketch of him, published therein, was not' approved by the defendant, he was justified in refusing to receive the book, and the plaintiff cannot recover. By the Oourt.— Judgment affirmed.