#### George Kuhn and another, plaintiffs, *vs.*John W. Stevens and another, executors &c., defendants.

1. Until a breach, a contract under seal cannot be discharged, or even modified, by parol.

2. An unexecuted contract, upon which no right of action has arisen, for the recovery of damages or otherwise, cannot be discharged or modified by a parol agreement; notwithstanding such parol agreement be fully executed.

3. And in an action upon the original contract, evidence of the parol agreement is inadmissible.

(Before Robertson, J., and Monell and McCunn, JJ.)

Heard December 10, 1868;

decided December 31, 1868.

This case came up on appeal from a judgment rendered on a verdict on a case made containing exceptions, and also on an appeal from an order refusing to grant a new trial.

The action was to recover damages for the breach of a written contract under seal, made by the defendants’ testator. It was shown that in March, 1866, the testator agreed to sell and deliver to the plaintiffs, between the first day of April, 1866, and the first day of February, 1867, 7000 cords of pine wood. The complaint alleged nonperformance by the testator in his lifetime, and by the defendants, his executors, since his death. The defense was that after the death of the testator, and about November, 1866, the plaintiffs and defendants agreed, by parol, that the defendants should deliver to the plaintiffs all the wood then cut and lying on the Baker farm, and that the first agreement must be canceled in respect to the balance of the wood agreed to be delivered by such' agreement, and that the defendants should not deliver nor the plaintiffs pay for the same.

That under the last mentioned agreement the defendants delivered to the plaintiffs all the wood so cut and lying on said farm. On the trial the plaintiffs objected to *545any evidence in support of the defense. The objections were overruled, and the defendants were allowed to prove the second parol agreement; and the justice refused to charge the jury that a sealed executory agreement could not be released or rescinded by a parol agreement, but did charge that if the jury found that the plaintiffs agreed, although by parol, to receive all their wood then cut, and to cancel the contract, they must render a verdict for the defendants. The plaintiffs excepted to the admission of the evidence, and also to the charge and refusal to charge.

*Dennis McMahon,*for plaintiffs, appellants.

*Henry Nicholl,*for defendants, respondents.

*By the Court,*Monell, J.

The distinction between the obligation' of an executory contract under seal, and a liability for damages for a breach of any of its stipulations, is so clearly defined, and the authorities so carefully collected in *Clough*v. *Murray,*(3 *Rob.*7,) that it is only necessary to apply the principles of such distinction to the facts of this case.

It is clearly established by these authorities that until a breach, a contract under seal cannot be discharged or even modified by parol.

By the terms of the contract between the plaintiffs and the defendants’ testator, the defendants had until the first day of February, 1867, for performance. There could, therefore, be no breach of the contract until the expiration of that time.

The agreement which it was claimed was an extinguishment, discharge or satisfaction of the first contract, was made in November, 1866, and before there had been any failure to perform the first contract.

The latter, therefore, was still an unexecuted contract, *546upon which no right of action has arisen, for the recovery ■ of damages or otherwise, and could not be discharged or modified by a parol agreement, notwithstanding such parol agreement was fully executed.

I am of opinion that the. evidence of the parol agreement was improperly admitted.

There must, therefore, be a new trial, with costs to the appellants to abide the event.

Judgment and order set aside, and new trial ordered accordingly.