and signed by the plaintiffs, "to be shipped immediately if vessels are not sent;" and no corresponding alteration has been signed by the defendants.

The first difficulty seems to be capable of a satisfactory solution. The printed part of the memorandum clearly contemplates that the shipment of the coal is to be made in vessels to be furnished by the vendors; although they assumed no responsibility about the vessels except reasonable diligence in procuring them. The insertion of the written clause, "we will send our own vessels," could only be explained as importing a change in this respect. In the part of the contract signed by the plaintiffs, "we" would mean the purchaser. In the other part the phrase follows the expression "your wharves," when speaking of the wharves of the defendant; and "we" is thus used in contradistinction from "you," the vendors. The agent of the vendors signs the paper; but still, if not with perfect grammatical correctness of expression, it is sufficiently obvious that in using the word "we" he means the purchasers.

The additional clause written upon the part of the memorandum retained by the defendants presents a more difficult question, though it shows very clearly who were meant by "we" in the part of the contract just considered. But it is obvious that it was not meant to impair the contract which had been made. It is an additional stipulation to take effect upon a contingency which has not happened. The evidence showed that vessels were sent by the plaintiffs. And if the contingency had happened, it was only the substitution of a new mode of performance, of which the defendants or plaintiffs might have availed themselves, even if made only by parol. Cummings v. Arnold, 3 Metc. 486, 37 Am. Dec. 155; Stearns v. Hall, 9 Cush. 31. If it were not binding on the defendants, because no memorandum of it was signed by them, it could not prevent the plaintiffs from enforcing the original contract. It is obviously inadmissible for the defendants to set it up as changing the contract, as evidenced by the completed memorandum, and at the same time to deny its obligation for want of their own signature.

It was held by the English Court of Exchequer, in the recent case of Bluck v. Gompertz, 7 Welsb., Hurlst. & Gord, 862, that where a correction was made upon the memorandum of a contract by the defendant, and signed only by the plaintiff, the original signature of the defendant was a sufficient signing under the statute. That decision would be applicable to the present case, if the memorandum had been contained in one paper, or if the indorsement had been made upon the part containing the signature of the defendants' agent. It is more doubtful whether it can be held to have the same effect where the memorandum is contained on separate papers, and we do not put the decision on that ground.

The other grounds of exception taken at the trial have not been insisted on by the plaintiff's counsel, and are clearly untenable. Exceptions sustained.

STEAD v. DAWBER et al.

(Court of Queen's Bench, 1839. 10 Adol & E: 57.)

54

Lord DENMAN, C. J., in this term, (May 7th), delivered the judgment of the Court.

This was an action to recover damages for the non-delivery of a cargo of bones. By the sold note, they were to be shipped on the 20th to the 22d of May, and to be paid for by an acceptance at three months from the delivery. The 22d happened to be on a Sunday; and, a conversation taking place between the defendant and the plaintiff's agent respecting this, upon the suggestion of the defendant, the Monday or Tuesday immediately following, were substituted as the days of delivery. The agent who proved this, also stated that the time for giving the acceptance would, in consequence, be also proportionably enlarged. The main question at the trial, and before us, was, whether this enlargement of the time was an alteration of the contract, or only a dispensation with its performance as to time. The declaration, after setting out the original contract, stated that the plaintiff, at the special instance of the defendants, gave them time for the delivery to the 24th May, and averred a demand on the 24th. The fourth plea alleged that this giving time was parcel of a contract within the Statute of Frauds; that there was no acceptance wholly or in part, or any earnest, or part payment; and that there was no note or memorandum in writing of it: and the replication traversed its being parcel of the contract.

The principles on which this case must be decided, are clear and admitted. The contract is a contract within the Statute of Frauds, and cannot be proved, as to any essential parcel of it, by merely oral testimony for to allow such a contract to be proved partly by writing and partly by oral testimony would let in all the mischiefs which it was the object of the statute to exclude. Many cases were cited in the argument on both sides, the plaintiff's counsel rely chiefly on Cuff v. Penn, 1 M. & S. 21; the defendants' on Goss v. Lord Nugent, 5 B. & Ad. 58, the decision in which it is certainly not easy to reconcile with that in the former. But it seems to us that we are mainly called on to decide a question of fact; what, namely, was the intention of the parties in the arrangement come to, for substituting the 24th for the 22d, as the day of delivery; did they intend to substitute a new contract for the old one, the same in all other respects, except those 54 The statement of facts is omitted.

of the day of delivery, and date of the accepted bill, with the old one? Where the variation is so slight as in the present case, and the consequences so serious, the mind comes reluctantly to this conclusion; and this reluctance is increased by considering in how many instances of written contracts within the Statute of Frauds, slight variations are made at the request of one or other of the parties, without the least idea, at the time, of defeating the illegal remedy or the original contract. But the same principle must be applied to the variation of a day and a week or a month; and it seems impossible to suppose that, when the plaintiff had agreed to substitute the 24th for the 22d, either party imagined that an action could be brought for a non-delivery on the 22d, or that a delivery on the 24th would not be a legal performance of the contract existing between them.

It was urged by the plaintiff's counsel that the defendant's argument reduced him to an inconsistency; that he alleged, on the one hand, an alteration of the contract by parol, and yet, on the other, asserted that such alteration by parol could not be made. But this is, in truth, to confound the contract with the remedy upon it. Independently of the statute, there is nothing to prevent the total waiver, or the partial alteration of a written contract, not under seal by parol agreement; and in contemplation of law, such a contract so altered subsists between these parties: but the statute intervenes, and, in the case of such a contract, takes away the remedy by action. It cannot be said that the time of delivery. was not originally of the essence of this contract: the evidence shews that the value of the article was fluctuating; and the time of payment was to be calculated from the time of delivery. Where these circumstances exist, it cannot in strict reasoning be argued, as was said by Lord Ellenborough, in the case of Cuff v. Penn, 1 M. & S. 21, that the contract remained, although there was an agreed substitution of other days than those originally specified for its performance. Nor does any difficulty arise from the want of consideration for the plaintiff's agreement to consent to the change of days; for the same consideration which existed for the old agreement, is imported into the new agreement, which is substituted for it. Putting, therefore, that construction on what passed between these parties which best effectuates their intention, and giving also full effect, as we ought, to the salutary provisions of the Statute of Frauds, we think that this giving of time was parcel of the contract, and consequently, that the verdict on the fourth plea should be entered for the defendants.

Rule absolute accordingly.5%

55 In Marshall v. Lyon, 6 M. & W. 109 (1840), Parke, B., said that "the case of Cuff v. Penn, which had before been very much doubted, appears to have been overruled by Stead v. Dawber."

NOBLE v. WARD et al.'

(Exchequer Chamber, 1867. L. R. 2 Exch. 135.)

WILLES, J.5 This is an appeal from the judgment of the Court of Exchequer making absolute a rule to set aside a nonsuit, and for a new trial. The action was brought for non-acceptance of goods pursuant to a contract dated the 18th of August, by which the goods were to be delivered in a certain time. The defendants pleaded that the contract was rescinded by mutual consent. At the trial, they established that, on the 27th of September, before any breach of that contract, it was agreed between the plaintiff and the defendants that a previous contract of the 12th of August should be rescinded (as to which no question is made), that the time for delivering under the contract of the 18th should be extended for a fortnight; and other provisions were made as to taking back certain goods, which we need not further notice. The contract of the 27th of September, however, was invalid, for want of compliance with the formalities required by section 17 of the Statute of Frauds. The defendants contended that the effect of the contract to extend the time for delivery was to rescind the contract of the 18th of August; and if the former contract had been in a legal form, so as to be binding on the parties, that contention might have been successful, so far as a change in the mode of carrying out a contract can be said to be a rescission of it; but the defendants maintained that the effect was the same, although the contract was invalid.

In setting aside the nonsuit directed by the learned judge who tried the cause, the Court of Exchequer dissented from that view, and held that what took place on the 27th must be taken as an entirety, that the agreement then made could not be looked on as valid, and that no rescission could be effected by an invalid contract. And we are of opinion that the Court of Exchequer was right. Mr. Holker has contended, that though the contract of the 27th of September cannot be looked on as a valid contract in the way intended by the parties, yet since, if valid, it would have had the effect of rescinding the contract of the 18th, and since the parties might have entered into a mere verbal contract to rescind simpliciter, we are to say that what would have resulted if the contract had been valid, will take place though the contract is void; or, in other words, that the transaction will have the effect which, had it been valid, the parties would have intended, though without expressing it, although it cannot operate as they intended and expressed. But it would be at least a question for the jury, whether the parties did intend to rescind-whether the transaction was one which could not otherwise operate according to

56 Part of the opinion is omitted.

WOODW.SALES (2D ED.)-50

their intention; and a material fact on that point is, that, while they expressly rescinded the contract of the 12th of August, they simply made a contract as to the carrying into effect that of the 18th, though in a mode different from what was at first contemplated.

It is quite in accordance with the cases of Doe d. Egremont v. Courtenay, 11 Q. B. 702, and Doe d. Biddulph v. Poole, 11 Q. B. 713, overruling the previous decision of Doe d. Egremont v. Forwood, 3 Q. B. 627 (see 11 Q. B. 723), to hold that, where parties enter into a contract which would have the effect of rescinding a previous one, but which cannot operate according to their intention, the new contract shall not operate to affect the previously existing rights. This is good sense and sound reasoning, on which a jury might at least hold that there was no such intention. And if direct authority were wanted to sustain this conclusion, it is supplied by Moore v. Campbell, 10 Ex. 323, 23 L. J. (Ex.) 310, where, upon a plea of rescission, the very point was taken by Sir Hugh Hill, who would no doubt have made it good had it been capable of being established. With reference to his argument that the contract was rescinded, Parke, B., said 10 Ex. at p. 332: "We do not think that this plea was proved by the evidence. The parties never meant to rescind the old agreement absolutely, which the plea, we think, imports. If a new valid agreement substituted for the old one before breach would have supported the plea, we need not inquire, for the agreement was void, there being neither note in writing, nor part payment, nor delivery, nor acceptance, of part or all." And he adds: "This was decided by the cases of Stead v. Dawber, 10 Ad. & E. 57, and Marshall v. Lynn, 6 M. & W. 109." *

*

BLACKBURN, MELLOR, MONTAGUE, SMITH, and LUSH, JJ., con

curred.

Judgment affirmed.57

CUMMINGS et al. v. ARNOLD et al.

(Supreme Judicial Court of Massachusetts, 1842. 3 Metc. 486, 37 Am. Dec.

155.)

WILDE, J.58 This case comes before us on exceptions to the rulings of the court at the trial, whereby the evidence offered by the defendants was rejected on the ground that the facts offered to be proved would not constitute a legal defence. The action is founded on a written contract, by which the defendants undertook to deliver to the plaintiffs, at a stipulated price, a certain quantity of cloths for printing, from time to time, between the 26th day of October, 1838, and the first of March following.

57 Compare Morris v. Baron & Co., [1918] A. C. 1, arising under the Sale of Goods Act, § 4, and British and Beningtons, Ltd., v. Northwestern Cachar Tea Co. [1923] A. O. 48.

58 The statement of facts and part of the opinion are omitted.