Cox v. Carrell & Co.

Woodward, J. — This cause is but one more added to the long list before this court, showing that there is not sufficient attention bestowed upon the entries of the proceedings of our courts. Our rights of property depend upon them, and they should be more full and complete. In this case, there is no entry of the disposition of the demurrer, nor any showing that the defendant had an opportunity to amend or to plead over. But we proceed to the judgment. The entry of the judgment should have been more explicit. It does not appear upon what ground the court proceeded. It is manifest that they sustained the demurrer upon some ground ; but it is sometimes material to know upon what one, for different consequences may follow from different grounds. [352] If the court sustained the demurrer upon the first cause—that is, that the answer did not show a substantial ground of defence — there was error; for, looking only at the matter pleaded, it was clearly good as a plea in abatement — since, if the plaintiffs made the agreement alleged, they could not bring their action until after the time of extension. The second cause of demurrer was, that the answer did not allege the agreement to be in writing. If it was sustained upon this, the ruling assumes two things: First, That the agreement must be in writing, in order to be valid; and, Second, That the pleading must aver it to be in wilting. The first of these propositions would be an error. A written contract may be affected in several ways, by parol agreement; for instance, it may be wholly set aside, or abrogated — the particulars, or details of its performance, may be varied, as is often the case in building contracts— and the place of performance may be changed, and so the time may be. Parol evidence is competent to prove the enlargement of the time of performance, says Mr. Greenleaf, in 1 Greenl. Ev., 400, section 304. The rule seems to be that parol evidence is admissible, if it is not proposed to show that a different contract was made, originally, from that expressed in the writing1, but only to show that some subsequent arrangement was entered into, in reference to the time, place, or details of performance. And it is yet a different question whether the contract need be alleged to be in writing, when the law requires it to be written, or whether the party may simply plead it, and let the objection to a want of writing come up on the evidence offered. In the present state of the case, a decision upon this is not required. The third cause of demurrer was, that the written agreement, or a copy, was not annexed to the petition. This objection disappears under the decision of the preceding ground, holding that the contract is not required to be in writing. The court erred, therefore, in sustaining the demurrer, and the judgment is reversed.