Herreshoff v. Misch

45 A. 145, 21 R.I. 524, 1900 R.I. LEXIS 4

Opinion

Per Curiam.

(1) It appears by the bill that the contract sought to be enforced has been varied by parol. In such cases the law seems to be well settled, both in this State and elsewhere, that a suit cannot be maintained on a contract so varied. Ladd v. King, 1 R. I. 224 ; Hicks v. Aylsworth, 13 R. I. 562 ; Dana v. Hancock, 30 Vt. 616 ; Rucker v. Harrington, 52 Mo. App. 481. The cases relied on by the complainant are cases where substituted performance has been allowed simply as a defence.

But even if the complainant’s claim is correct, the question would then come, as a question of fact, to what extent the original contract had been modified. The complainant says that it was only as to the amount of payment for services. The respondent testifies that it was agreed to be absolutely cancelled. Having no other testimony than that of the parties themselves, the court cannot be satisfied as to what the agreement really was, and this fact illustrates the wisdom of the rule that the alteration should be in writing before it can be enforced.

Walter H. Barney, for complainant. Hudcly & Easton, for respondent.

Bill dismissed.