Doherty v. Doe

18 Colo. 456

• Court: Supreme Court of Colorado
• Decided: April 15, 1893
• Status: Published

Opinion

Chief Justice Hayt

delivered the opinion of the court..

Plaintiff in error questions certain of the findings of fact made by the referee, but, upon careful examination, we think the evidence fully sustains such findings. The salient points ■ upon which the decision must turn in our opinion, are not contradicted. These are that Healy. held the legal title to the property, with authority to control and manage the same,, with power to lease,-collect the rents and apply the same in. satisfaction of his claim. In pursuance of this authority he did execute a written lease of -the property to defendant in error, and afterwards, finding that she was .’unable to pay the-stipulated rent, he agreed to á reduction of the same. , It further appears that defendant in error paid the entire rent, calculated at the. reduced rate, and that she had a final settlement of the matter.'with Healy before the lease was assigned-to Doherty. ,,

It is.-contended that the parol promise of a reduction is without consideration, and also that it falls within the statute of frauds. The defendant in error, by refusing to perform the written contract, subjected herself to such damages as might be sustained by the lessor. He, however, elected to waive the written lease, and she agreed to continue -the hotel business under a promise of a reduction of the rent. This was a sufficient consideration for the promise. Munroe v. Perkins, 9 Pick. 298.

Is the oral agreement void, by reason of the statute of frauds ? The referee fixed the time at which the lease was modified by parol, at the month of September, 1887. At this time, more than one year of the two year term fixed by the lease had expired, and it has been held that a modification by parol for a period less than one year, is not within the statute of frauds. Smith v. Devlin, 28 N. Y. 363.

We prefer, however, to rest the decision upon another principle of the law of contracts. This may be stated as follows: When the terms of an instrument, required to be in writing under the statute of frauds, are afterwards modified by parol, and as so modified have been fully carried out, the obligation is discharged. Bishop, in his work on Contracts, at sec. 135, says : “ If a parol agreement rescinding a specialty is fully executed, it will be effectual.” And in the well considered case of Long v. Hartwell, 34 N. J. Law Rep., it is said: “ A contract under the dominion of the statute of frauds can be no more secure against invasion, by parol than a sealed instrument.” See also Munroe v. Perkins, supra; Lattimore v. Harsen, 14 Johns. R. 330; Lawrence v. Dole, 11 Vt. 549; Canal Co. v. Ray, 101 U. S. 522; Dickerson v. The Commissioners, 6 Ind. 128; Phelps v. Seely et. al., 22 Gratt. 573; Dearborn v. Cross, 7 Cowen, 47; Greenleaf on Evidence, (14th ed.) sec. 303.

Healy at the time he assigned the lease had no cause of action upon the same against defendant in error, and his assignee, Doherty, therefore took nothing by the assignment. The judgment is

Affirmed.