Lee v. Hawks

Woods, J., delivered the opinion of the court. It may be admitted that a contract for the sale of growing timber is within the statute of frauds, and must be in writing, but this [671] does only touch the point involved in the ruling of the court below by which the parol evidence offered was excluded. This suit is for the recovery of damages for trespass in cutting certain trees on lands belonging to plaintiff, and is not an action on a contract required to be in writing. The contract of lease, under which defendant tvent into possession of the premises for a term of three years, was read to the jury in the examination of the plaintiff on the trial of the cause, by which it was shown that the defendant acquired the right to cut and use the trees in question. As this alone wordd have defeated a recovery by plaintiff, he then offered to prove a parol agreement, made subsequent to the execution of the lease, by which, for a valid consideration, as was offered to be proven, the defendant waived, his right to cut and use the timber, by way of meeting the defense made for the defendant by the contract of lease. In effect, the matter stands as if plaintiff had sued for the trespass, and defendant had pleaded justification under the written contract; and plaintiff had then offered to prove the parol agreement by way of answer to the plea. The statute of frauds debars one of an action on a contract, in certain cases, unless the contract be in writing ; but a parol agreement to annul or waive a particular stipulation in the written contract which has been mutually assented to and fully performed, may be offered in evidence in defense of an action for a breach of the original written contract. An action may not be maintained, in cases within the statute, upon a contract not in writing; but a defense may be made by showing an executed parol agreement waiving or annulling a particular provision of the written contract. The subject is not free from difficulty, and the discussions by text-writers, and the opinions of courts in reported cases, are full of subtle distinctions and refinements ; nor is the current of authority clearly bent in any direction. The views briefly advanced hereinbefore are supported by some excellent authorities, and are agreeable to reason and justice. Benjamin in his admirable work on Sales, p. 229, states the rule with his usual clearness : “ Parol evidence to prove, not a substi [672] tuted contract, but tbe assent of the defendant to a substituted'mode of performance of tbe original contract, when that performance is completed, is admissible.” See Swain v. Seamens, 9 Wall. 254; Jackson v. Litch, 62 Pa. St. Rep. 451; Long v. Hartwell. 34 N. J. Law, 116; Reed on Statutes of Fraud, § 239. Reversed and remanded.