Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-22

made under the modified contract.
Defendants, on May rs, 1909, had the
option recorded and thereafter have
been claiming some interest in the
premises hereunder
Upon the trial findings were made
and a decree rendered in favor of
plaintiff for the relief asked De-
PENDANTS appeal,
Eakin, c. j. The contract by its
terms is an option. For the consid-
GRAFTON of $4,000 paid, plaintiff grant
ed to defendants, until April Is,
1909, the exclusive and irrevocable
privilege to purchase the land 1t
was unilateral until accepted by de-
PENDANTS on that day. Until then
they were in no way obligated to buy,
and it was not a contract of sale
Plaintiff was bound by his offer, dur
ing the time specified, that he was
not at liberty to withdraw 1t, there
being consideration paid for it. 1t
is true the $4,000 was to constitute
a part of the purchase price, If the
sale was completed, but that sum
was plaintiffs money in either case.
But to have the option eliminate in a
contract of sale, defendants must
have accepted it within the time
specified, and the acceptance was to
be evidenced by the payment of the
$4,000 on April 10, 1909; House v.
Jackson, "a OrS9; Clarno V. Gray
son, 80 Or, III, 1870; Friendly " Ell
vert (Or) 112 Pac. 1885. Until that
should be done defendants would ac-
quire no right in the property, ex-
cept that if they entered into possess
sion they would not be trespassers
while they complied with the condi-
tions Of the agreement Their right
to possession was no more than a
contingent license.
AS to the effect of a subsequent
parOl modification of an agreement
Of the sale or real estate, the rule is,
that an agreement, required by the
statute of frauds to be in writing,
cannot be subsequently changed or
modified as to the time of perform
ance by any oral executory contract.
There is a full discussion of this
question in Neppach " Ore. e. Calf.
R. Co. 46 Or. 374, and in the note to
that case in A. & e. A. c. 1041,
from which the conclusion is irresis-
tible that such subsequent parol
modification is void. To hold other
wise would be to open the door to
the very frauds the statute of frauds
was intended to prevent However
there is an exception to that rule Ia
the effect that equity will not permit
the statute Of frauds to be used to
perpetuate a fraud namely: If there
was a subsequent oral agreement for
an extension of time of payment act
ed upon by the yendee, equity will
not permit the vendor thus to induce
the vendee to make a default in pay
ment as provided by the written
agreement and then invoke the stat
ute. This was the point upon which
the case of Neppach v. Ore e Calf
r. Co. was decided Mr. Justice Bean
in that case says, that by the settled
doctrine in England that an agree
ment required by the statute of frauds
to be in writing cannot be subse-
quently changed or modified as to the
time Of performance, or in any other
respect, by an oral eXecutory contract
=. In this country probably
a majority (of statesJ deny the valid.
ity Of such an agreement, unless acted
upon by the parties, and hold that q
part Of contract required by the sta
ute to be in writing cannot rest II
parol' And proceeds to hold that tho
case before the court was within tn,
exception named, viz: a subsequent
extension therein had been ORALLY
agreed upon at the request Of and fol
the benefit Of the vendor, although
the yendees were ready to pay within
the time mentioned in the writer
contract In the note to that case
referred to, many cases are cited sup
porting the conclusion of Mr.. justice
Bean, where It IS said: Evidence o
an oral agreement altering the terms
Of a written contract within the stat
ute OF frauds, while not evidence o
an enforceable agreement, Is admiss
ible to establish a waiver OF the term
Of the written contract, where II ap
pears that the contract, as altered
, has been acted upon by the party OF
fering the evidence Other cases ar
, rive at the same result but place /
on the ground Of an equitable estOp
pei, that he who causes anything q
be done or prevents IL from being don
/ shall not avail himself Of the per
. formance or nOn-performance whicI
he himself has occasioned. Other
J hold that the statute Of frauds ma
/ not be invoked 10 perpetuate fraud
: This is upon the theory that II woul
, be a fraud upon the yendee--he hay
! ing been induced 10 let the time q
4 payment go by by oral promise q
; extension Of the time-tO permit tn
! statute Of frauds thereafter to be In
Y voked. Bat where the situation {
1 the parties Is not altered in relianc
% upon a subsequent oral agreemen
I such agreement IS within the statut
= and must be In writing
: Applying this rule TO the facts
& this case, the time Of the option wa