Keating v. Price — 1 Johns. Cas. 22

Majority

p. 23

*Keating against Price.

Headnote

Evidence of a parol agreement to enlarge the time of performance of a written contract, previously made, is admissible.

This was an action on the case founded on a special agreement. The plea was the general issue, with a notice from the defendant, that he would insist on some special matters in his defence, which, with reference to the point decided by the court, it will be unnecessary to state.

On the trial before Lansing, chief justice, at the last Rensselaer circuit, the plaintiff proved a written agreement, as set forth in the declaration, by which the defendant promised to deliver to the plaintiff, at the city of Albany, fifty thousand pipe staves, at á stipulated price, on or before the first day of May, 1796.

On the part of the defendant, it was, among other things, proved, by one R. Wait, that in the month of January, 1797, he had a conversation with the plaintiff, who informed him, that he, the plaintiff, had made the contract with the defendant for the delivery of the staves, as above mentioned, but that he had agreed to extend the time for delivering them until the next spring.

A verdict was taken for the plaintiff by consent, subject

p. 24

to the opinion of this court on several points, and among others, whether the time for performing the contract could he extended, by a subsequent agreement between the parties, and whether Wait’s testimony could be received, to > prove the declaration of the -plaintiff to that' effect. If so it was agreed that a nonsuit should be entered.

Burr, for the plaintiff.

Woodworth, for the defendant,

This being, originally, a simple contract, we are of opinion, that it was competent for the parties, by parol agreement, to enlarge the time of performing it, and that Wait’s testimony, to prove the plaintiff’s declaration to that effect, was properly received. An extension of the time may often be essential to the performance of executory [*23] Contracts, and there can be no reason why a subsequent agreement for that purpose, should not he valid. Let a nonsuit be accordingly entéred.^[1]

Judgment of nonsuit.

(a) (a) Frost v. Everett, 5 Cowen, 497. Fleming v. Gilbert, 3 Johns. R. 527. Langworthy v. Smith, 2 Wend. 587 . Ewin v. Saunders, 1 Cowen, 249 Dearborn v. Cross, 7 Cowen, 50. Neil v. Cheves, 1 Bailey, 537. Franklin v. Long, 7 Gill & John. 407, The place as well as1 time of performance may be varied by a subsequent parol' agreement.” Robinson v. Batchelder, 4 N. H. R. 40 . Or the mode of payment as other terms of a written contract may be changed by asubsequent parol agreement made upon sufficient consideration or it may be so discharged altogether. Low v. Treadwell, 3 Fairf. R. 441. Bailey v. Johnson, 9 Cowen, 115, 118. Per Cur in Erwin v. Saunders, 1 id. 250. Cummings v. Arnold, 3 Metcalf, 486, 489. Richardson v. Hooper, 13 Pick. 446 . See 11 Pick. 439 . Monroe v. Perkins, 9 Pick. 298 . Trumbo v. Cartright, 1 Marsh. Ken. R. 582. Mossy v. Mead, 2 Mill. Lou. Rep. 157. Benson v. Smith, id. 103. Perrine v. Cheeseman, 6 Halst, •174. Sharp v. Lipsey, 2 Bail. R. 113.