Eddy v. Graves

23 Wend. 82

Opinion

Cowen, J.

By the Court, We are quite clear that neither of the exceptions is well taken. The plaintiff retained the privilege of sale generally ; and unless he fraudulently sold the goods in such a way as to injure the defendant, the latter must pay for the balance remaining on hand the 10th of September, not exceeding nine hundred dollars. No fraud was pretended or offered to be shown.

The second exception cannot avail for the reasons assigned at the circuit by the plaintiff’s counsel, apd adopted by the judge, viz: 1. Because there was no consideration for the agreement to postpone; and 2. Because a contract by specialty cannot be varied by parol agreement, though it be made on valuable consideration. I had occasion to consider the authorities relating to the latter position in Allen v. Jaquish, 21 Wendell, 628, and shall not go over them now. We wish to be understood as adopting the rule that a subsequent executory contract, in order to operate as a defeasance or modification of a previous contract by specialty, though that be executory, must itself be under seal, whether it have a consideration or not, and whether it be made before or after a breach of the previous contract or not.

New trial denied.