The Pacific commercial advertiser., 1900-10-19

an Offer 1t is in effect alleged been an offer and it is
capable OF being construed offer The circumstances under
wnicn 1t was written might be such determine whether it
was intended IS offer or not
Assuming then that might construed in the light
Oh the circumstances under which written containing
an oer or promise lease such therein described
Ia case the plaintiff should offer agree pay of $4,000
year. the question arises whether the plaintiff complied with
the condition named and completed the contract and So
"na the effect of the agreement the draft of ease
obvious that the contract if there one whose terms
are supposed to be embodied in the letter same contract
nere was whose terms supposed be embodied the
urat OF the lease If the supposed offer contained thu letter
mad been simply accepted ard further made
the court could by enforcing specific of
he promise contained in the letter. compel of the
draft OF the lease To do that would have add terms which
are not found in the letter and which could implied as
usual in leases
lhe alleged promise contained the was writing and
signed by the agent the party be charged oa accept
ance by the other party would be sufficient The alleged contract
whose terms supposed be forth the draft
signed There fraud mistake or part performance TO take Il
out of the statute of frauds
Was that contained in the lease complete extngushment
Of and substitution for that the letter. subsequent modfca
ton OF IT. contempoaneous modification variation of
or was it really the only made9
The Circuit Judge held that the contained in the letter
was accepted without qualification the made
subsequently waived and abandoned and the moconor new
enforced because not writing required by the
Whether he meant that subsequent modification in all
amounted abandonment the original or that
subsequent modification of concerning land must in all
cases be in writing, is clear
There is distinction between abandonment and mod
hcation and opinion the allegations if there
contracts in this the whose terms contained in the
craft Of the lease be regarded modification and
waiver abandonment of the whose
the letter.
In such the former subsequent modification of
the latter specific performance could be enforced of original
contract in writing the defendants option of the contract
subsequently orally modified Robinson Page Russ
Price Dyer, II YES 35S. Of course if there waiver
abandonment neither could be enforcedhe
because extnguhed the writing; but
where there only subsequent modification, the plaintiff may
call for the enforcement of the original because writing and
exngushcd and the court the desire of the defendant
may matter of equity and justice grant the plaintiff specific
performance only condition that he accepts the modification
agreed upon The plaintiff himself may forth the modca
ton and offer perform the defendants option or the
fendant may set it up and ask for its performance.
If the agreement con:emporaneous modification
variation of the other could be relied introduced in
evidence by either party the absence of Fraud mistake part
performance for the would be taken
all that the parties agreed upon Otherwise the rule requiring
the be in writing would be useless In such
plaintiff specific performance the
agreement in writing irrespective of the modification
Was then the agreement whose forth in the
draft Of the lease modification, either subsequent
of whose supposed be set forth In the
letter. the only agreement made by the parte2
there only notification the original could be enforced
modified unmodied according the modification sub
sequent conempoaneou If there only agreement
namely the whose forth in the draft of the
lease could not be enforced because writing signed by
the party In such would have regard the oer any,
contained in the letter having been accepted and the
having remained in treaty negotiation until the
set forth in the draft of the lease were agreed upon
Whether there original and modification
only easy question to decide the allie
cations Of tho bill 1t is question of the construction of the
BILL The rule under the law pleading
strongly against the peader but this applied rather
last when the pleading could not be satisfactorily construed
under other rules In equity however law the code
states peadng construed beay all fair and
In tho