McConathy v. Lanham

Opinion op the court by CHIEF JUSTICE BURNAM Reversing. In November, 1899, the appellees, J. T. Lanham, E. L. Lanham, and H. C. Truitt, executed and delivered to the appellants, W. J. McConathy and W. E. Burke, the following writing: “This contract witnesseth that: Whereas J. T. Lanham holds a lease of mineral rights in the lands owned by the Page and Krausee Mining and Manufacturing Company of St. Louis, Missouri, lying in Crittenden county, Kentucky, and, whereas, he has sold one-foiirth undivided interest in said mineral lease to T. J. Carter, and one-fourth interest to E. L. Lanham, and one-fourth interest to II. C. Truitt, now we, the said J. T. Lanham, E. L. Danham and IL C. Truitt, each bargains and sells to W. J. McConathy and W. E. Burke, both of Louisville,' Kentucky, our undivided rights in said lease for and in consideration of the sum of $200'.00 each, to be paid on or before the 31st day of December, 1S99. It is further agreed- that if the consideration herein named is not paid, on or before the 31st of December, 1899, this contract of sale shall be null and void. This-day of November, 1899, in Marion, Crittenden county, Kentucky. J. T. Lanham. E. L. Lanham. EL C. Truitt.” On -the 9th of July, appellees sued the appellants on this contract, and -alleged that while they had a right to cancel the contract because the $600 was not paid, as stipulated, on the 31st day of December, 1899, they had not done so,, because at the defendant’s request that their option should be extended until the following April they had agreed thereto, and that subsequent tó the 31st day of December the defendants, in [739] recognition oí their liability under the agreement, had promised'to pay the $600. A general demurrer was sustained to the petition. Appellees then filed an amended petition, in which they allege, in. substance!, that before the 31st day of December, 1899, at the special instance and request of f;he defendant, the contract of lease was extended, and they were given sixty days longer to pay the consideration therefor; that the defendants thereafter took possession of the leased property, and operated a mine thereon. The defendants demurred to the petition as amended, which was overruled. They then filed an answer in which they pleaded that the writing sued on was a mere option, which became void, under its express terms, by failure on their part to pay the contract price of $600 on or before the 31st of December, 1899. They also deny that either before or after the 31st day of December, 1899, they made a new verbal contract with the plaintiff by‘which they agreed that the written option should be extended, and that they should have sixty days from the 31st of December to pay the contract price, or that they had ever taken possession of the premises under either contract, or operated a mine thereon. A trial before a jury resulted in a verdict for the $600 sued for. Upon this appeal, appellants ask a reversal on two grounds: First, because the court erred in overruling their demurrer to the petition as amended; and, second, because the circuit judge refused, upon their motion, to direct the jury to find a verdict in their favor. The contract expressly stipulates that if the $600 is not paid on or before the 31st day of December, 1899, it should thereafter be null and void. It seems clear that after the 31st of December, 1899, appellants coul'cf nut have required the appellees to have accepted a tender of the $600, ^for the reason that their right to do so under the contract had terminated. We think there can [740] be no doubt that the writing is a mere option which the appellants could have accepted a.t any time before the 31st day of December by the payment of the $600, but that by fiheih failure to comply with this requirement the option terminated. In Litz v. Gossling, 93 Ky., 185, 14 R., 91, 19 S. W., 527, the writing was very similar to that in this case and it was adjudged to be a mere option, and specific performance was refused. In Stembridge v. Stembridge’s Adm’r., 87 Ky., 91, 9 R., 948, 7 S. W., 611, it was held that “where A. agrees to convey to B. upon condition that B. exercises his option to do a particular thing at a specified time, but the contract imposes no obligation upon B. to do the specified thing, no interest passes to B. unless he complies with his agreement.” The question then arises whether the alleged parol agreement by which appellants were given sixty days from the 31st of December, 1899, to pay for and take possession of the leased property, constitutes an enforceable obligation. Appellants claim that, as the original option was in writing, the subsequent verbal agreement substituting a different day for the payment of the consideration continued the writing in force, or, in other words, it was competent for the parties to a contract required by statute to be in writing to modify anld change its terms of payment by a subsequent verbal agreement of the parties thereto, and that the effect of such agreement was to continue in force such contract. While the question is not free from difficulty, we think the great weight of authority is to the effect that a written contract, within 'the statute of frauds, can not be modified by a subsequent agreement between the parties, unless such new agreement is also in writing. See Emerson v. Slater, 22 How., 28, 16 L. Ed., 360; Swain v. Seamens, 9 Wall., 254, 19 L. Ed., 554; Chitty on Contracts (11th Am. Ed.) 154; [741] Bishop on Contracts, 771; Fry on Specific Performance (3d1 Am. Ed.) 777. But the contention <of appellees in this case goes farther than the mere changing of a written contract by a subsequent ve'rbal agreement. If we understand correctly their contention, it is that a contract which the statute requires to be in writing, ahd which by its terms expires on a particular day, was kept alive and extended by 'a verbal agrément of the parties fheretlo' postponing the time for the payment of the consideration.. Subsection 6 of section 470 of the Kentucky Statutes of 1899 provides “that no action shall be brought to charge any person upon any contract for ihe sale of real estate or any lease thereof for a longer term than one year,” unless in writing. As the option of 1899 was for the sale of an interest in real estate, and was for a longer period than one year, it was necessary that it should be ini writing, to bind the parties thereto. That contract died on the 31st of December by the failure of appellants to perform its conditions. The alleged verbal agreement subsequently entered into between the parties was also for the sale and purchase of an interest in real estate, and was also for a longer period than one year. In .our opinion, the statute requires that! this contract, also, should have been in writing, before it could be made the basis of a claim against the appellants; and the trial court erred in overruling appellants’ demurrer to the amended petition’, and also erred in refusing appellants1’ motion to give to the jury a peremptory instruction to find in their favor on this ground. For reasons indicated, the’ judgment is reversed, .and the cause remanded for proceedings consistent with this opinion. Petition for rehearing by appellees1 overruled.