Story Case

Strother Eastman promised to sell his typewriter to H. E. Gunn for $50. Later, Gunn decided that he did not want the machine, although he said that he would take it if Eastman insisted. Eastman then made the following statement:

"I am not anxious to sell it. So, if you will agree to pay the same price for my set of carpenter's tools, I'll let you out".

Gunn agreed to this proposition. Several days later, Gunn secured a position as stenographer and wanted the typewriter. Eastman refused to deliver it and Gunn sued him. Should he recover!

Ruling Court Case. Goss Vs. Lord Nugent, Volume 5 Barnewell & Adol-Phus Reports, Page 58

By an agreement in writing, Goss contracted to sell Lord Nugent several lots of land and to make a good title to all of them. Lord Nugent paid a deposit upon the purchase price. It was afterwards discovered that a good title could not be made by Goss to one of the lots. Lord Nugent and Goss then agreed, verbally, to waive the defective title as to that lot. Goss then delivered possession of all the lots to Lord Nugent, which he accepted. Lord Nugent, thereafter, refused to pay the full purchase price. This suit was brought to recover the same.

Lord Nugent contended that he was not obliged to pay the full price, because title had not been made out to all the lots. Goss insisted that Nugent had waived this as to the lot in question, and was, therefore, liable.

Decision

As a general rule the parties may at any time substitute any new agreement, which they may choose, for the old one. In this case, there was a new agreement which was substituted for the old, and under ordinary circumstances would have taken the place of the old; but the Statute of Frauds requires that all agreements relating to the sale of land shall be evidenced by an agreement in writing, signed by the party sought to be charged.

Mr. Chief Justice Denman said: "After an agreement has been reduced to writing, it is competent to the parties, at any time, before breach of it by a new contract, in writing or not in writing, either altogether to waive, or dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make a new contract, which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement." But this does not apply to contracts in reference to the sale of land; they must be in writing. And had the agreement here been in writing, it would have been good.

Accordingly it was decided that judgment should be given for Lord Nugent.

Ruling Law. Story Case Answer

A contract may also be discharged by a new or substituted agreement. This applies whether the original contract was executory in whole or executed in part. Such an agreement must also conform to all the rules which govern the validity of any other contract. Therefore, it is necessary that the new agreement should be supported by a consideration. But this consideration may be found in the parties giving up the old rights and assuming new duties. In the Story Case, the contract to sell the typewriter was discharged by the substituted agreement for the sale and purchase of the carpenter's tools.

Judgment should be given against Gunn in that case.