Chase, J.
The parties to this action entered into a written contract under seal for the exchange of pieces of real property in the city of New York. On the day fixed therein for carrying out the contract and making the conveyances, the defendant deliberately defaulted. The action was brought to recover damages alleged to have been sustained by the plaintiff.
At the trial the jury determined all of the issues in favor of the plaintiff and rendered a verdict for it. The defendant appealed from the judgment entered upon such verdict and the Appellate Division reversed the judgment and dismissed the complaint.
(Imperator Realty Company, Inc.,
v.
Tull,
179 App. Div. 761.)
One of the provisions of the contract is “All notes or notices of violations of law or municipal ordinances, orders, or requirements noted in or issued by any department of the city of New York against or affecting the premises at the date hereof, shall be complied with by the seller and the premises shall be conveyed free of the same.”
There were several notices of violations of law or municipal ordinances, orders or requirements noted in
or issued by a department of the city of New York against or affecting the premises to be conveyed by the plaintiff at the. date of the contract which, although aggregating an amount that is comparatively very small' were not satisfied or discharged on the day when the property was to be conveyed. The plaintiff sought to avoid the failure to procure the discharge of such violations by an alleged modification of the contract pursuant to a conversation between the president of the plaintiff and the defendant in which it is claimed that there were reciprocal promises. The president of the plaintiff testified that after the making of the contract and on the same day thereof, it was agreed between the parties to the contract that either party in place of satisfying any of the so-called violations that might be filed against the pieces of real property therein mentioned might deposit with the New York Title Insurance Company a sufficient amount of cash to pay and discharge the same. There is evidence in the record to show that the plaintiff was able and willing on the day and at the time and place for closing the contract to carry out the same as therein provided except that he could not convey the property to be transferred by him free from such violations, and there is also evidence that he was able and willing to deposit a sufficient amount of cash to comply with and free the property from the violations as required by such oral agreement between the parties.
The conversation testified to by the plaintiff’s president is denied by the defendant, but in our judgment the question whether the conversation occurred and the agreement was entered into by the parties as claimed by the plaintiff, was a question of fact properly submitted to the jury. The objection that the oral agreement and waiver were not alleged in the complaint was not sufficiently taken by objection at the trial. If it had been so taken at that time the plaintiff would have had an opportunity to apply for an amendment of its complaint.
It is claimed by the defendant that the contract with the plaintiff was in writing under seal and could not be changed as claimed by an oral agsoreement as to be binding upon either party to it. The contract was also within the provisions of section 259 of the Real Property Law (Consolidated Laws, chap. 50), and it was, therefore, necessary that it should be in writing as stated in the statute.
Where a contract is reduced to writing and appears to include the entire agreement of the parties and to be free from fraud, the rule is quite universal that oral evidence will not be received of conversations or transactions leading up to the making of a contract or in connection with the execution thereof for the purpose of varying, modifying, reducing or extending the terms thereof.
(Lese
v.
Lamprecht,
196 N. Y. 32;
Eighmie
v.
Taylor,
98 N. Y. 288.)
After the execution of a written contract including one within the statute the parties may, of course, reconsider the subject-matter thereof and decide to modify or rescind it. The oral agreement found in this case was made after the execution of the written contract. It is not the right to make a new and independent contract to modify a prior unperformed written contract that we are considering but the effect, if any, of an oral contract upon a contract under seal or required by the statute to be in writing. We must assume in this case that the oral contract as claimed by the plaintiff, to accept a deposit in cash in place of the payment of outstanding violations, was actually made upon a sufficient consideration. The jury has so found. The oral contract did not purport to be inconsistent with any material part of the written contract, nor to substitute a new oral contract for any material part of the written contract. The plaintiff "was simply told in effect to let the violations stand unsatis- . fied until the due day and then provide for the expense of satisfying the same by a deposit in cash. The extent of the violations was inconsiderable. Both parties were
convenienced by waiving the necessity of having them actually canceled and satisfied before the due day.
In
Thomson
v.
Poor
(147 N. Y. 402, 409), which was an action to recover upon a balance claimed to be due pursuant to a written contract which was within the statute, this court say:
“
We know of no principle of law which will permit a party to a contract, who is entitled to demand the performance by the other party of some act within a specified time and who has consented to the postponement of the performance to a time subsequent to that fixed by the contract, and where the other party has acted upon such consent and in reliance thereon has permitted the contract time to pass without performance, to subsequently recall such consent and treat the non-performance within the original time as a breach of the contract. The original contract is not changed by such waiver, but it stands as an answer to the other party who seeks to recover damages for non-performance induced by an unrecalled consent. The party may, in the absence of a valid and binding agreement to extend the time, revoke his consent so far as it has not been acted upon, but it would be most inequitable to hold that a default,, justified by the consent, happening during its extension, should furnish a ground of action. It makes no difference, as we conceive, what the character of the original contract may be, whether one within or outside the Statute of Frauds. The rule is well understood that if there is a forbearance at the request of a party, the latter is precluded from insisting upon non-performance at the time originally fixed by the contract as a ground of action. * * * Until he gives notice of withdrawal he has no just right to consider the latter in default, although meanwhile the contract time has elapsed. We think the principle of equitable estoppel applies in such case.” The court further say that the principle of estoppel applies equally to sealed and unsealed contracts.
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Chase, J.
The parties to this action entered into a written contract under seal for the exchange of pieces of real property in the city of New York. On the day fixed therein for carrying out the contract and making the conveyances, the defendant deliberately defaulted. The action was brought to recover damages alleged to have been sustained by the plaintiff.
At the trial the jury determined all of the issues in favor of the plaintiff and rendered a verdict for it. The defendant appealed from the judgment entered upon such verdict and the Appellate Division reversed the judgment and dismissed the complaint.
(Imperator Realty Company, Inc.,
v.
Tull,
179 App. Div. 761.)
One of the provisions of the contract is “All notes or notices of violations of law or municipal ordinances, orders, or requirements noted in or issued by any department of the city of New York against or affecting the premises at the date hereof, shall be complied with by the seller and the premises shall be conveyed free of the same.”
There were several notices of violations of law or municipal ordinances, orders or requirements noted in
or issued by a department of the city of New York against or affecting the premises to be conveyed by the plaintiff at the. date of the contract which, although aggregating an amount that is comparatively very small' were not satisfied or discharged on the day when the property was to be conveyed. The plaintiff sought to avoid the failure to procure the discharge of such violations by an alleged modification of the contract pursuant to a conversation between the president of the plaintiff and the defendant in which it is claimed that there were reciprocal promises. The president of the plaintiff testified that after the making of the contract and on the same day thereof, it was agreed between the parties to the contract that either party in place of satisfying any of the so-called violations that might be filed against the pieces of real property therein mentioned might deposit with the New York Title Insurance Company a sufficient amount of cash to pay and discharge the same. There is evidence in the record to show that the plaintiff was able and willing on the day and at the time and place for closing the contract to carry out the same as therein provided except that he could not convey the property to be transferred by him free from such violations, and there is also evidence that he was able and willing to deposit a sufficient amount of cash to comply with and free the property from the violations as required by such oral agreement between the parties.
The conversation testified to by the plaintiff’s president is denied by the defendant, but in our judgment the question whether the conversation occurred and the agreement was entered into by the parties as claimed by the plaintiff, was a question of fact properly submitted to the jury. The objection that the oral agreement and waiver were not alleged in the complaint was not sufficiently taken by objection at the trial. If it had been so taken at that time the plaintiff would have had an opportunity to apply for an amendment of its complaint.
It is claimed by the defendant that the contract with the plaintiff was in writing under seal and could not be changed as claimed by an oral agsoreement as to be binding upon either party to it. The contract was also within the provisions of section 259 of the Real Property Law (Consolidated Laws, chap. 50), and it was, therefore, necessary that it should be in writing as stated in the statute.
Where a contract is reduced to writing and appears to include the entire agreement of the parties and to be free from fraud, the rule is quite universal that oral evidence will not be received of conversations or transactions leading up to the making of a contract or in connection with the execution thereof for the purpose of varying, modifying, reducing or extending the terms thereof.
(Lese
v.
Lamprecht,
196 N. Y. 32;
Eighmie
v.
Taylor,
98 N. Y. 288.)
After the execution of a written contract including one within the statute the parties may, of course, reconsider the subject-matter thereof and decide to modify or rescind it. The oral agreement found in this case was made after the execution of the written contract. It is not the right to make a new and independent contract to modify a prior unperformed written contract that we are considering but the effect, if any, of an oral contract upon a contract under seal or required by the statute to be in writing. We must assume in this case that the oral contract as claimed by the plaintiff, to accept a deposit in cash in place of the payment of outstanding violations, was actually made upon a sufficient consideration. The jury has so found. The oral contract did not purport to be inconsistent with any material part of the written contract, nor to substitute a new oral contract for any material part of the written contract. The plaintiff "was simply told in effect to let the violations stand unsatis- . fied until the due day and then provide for the expense of satisfying the same by a deposit in cash. The extent of the violations was inconsiderable. Both parties were
convenienced by waiving the necessity of having them actually canceled and satisfied before the due day.
In
Thomson
v.
Poor
(147 N. Y. 402, 409), which was an action to recover upon a balance claimed to be due pursuant to a written contract which was within the statute, this court say:
“
We know of no principle of law which will permit a party to a contract, who is entitled to demand the performance by the other party of some act within a specified time and who has consented to the postponement of the performance to a time subsequent to that fixed by the contract, and where the other party has acted upon such consent and in reliance thereon has permitted the contract time to pass without performance, to subsequently recall such consent and treat the non-performance within the original time as a breach of the contract. The original contract is not changed by such waiver, but it stands as an answer to the other party who seeks to recover damages for non-performance induced by an unrecalled consent. The party may, in the absence of a valid and binding agreement to extend the time, revoke his consent so far as it has not been acted upon, but it would be most inequitable to hold that a default,, justified by the consent, happening during its extension, should furnish a ground of action. It makes no difference, as we conceive, what the character of the original contract may be, whether one within or outside the Statute of Frauds. The rule is well understood that if there is a forbearance at the request of a party, the latter is precluded from insisting upon non-performance at the time originally fixed by the contract as a ground of action. * * * Until he gives notice of withdrawal he has no just right to consider the latter in default, although meanwhile the contract time has elapsed. We think the principle of equitable estoppel applies in such case.” The court further say that the principle of estoppel applies equally to sealed and unsealed contracts.
More recently this court in
Arnot
v.
Union Salt Company
(186 N. Y. 501) held that where the time of payment under a contract had been extended by parol and the party required to make the payment had acted upon such extension the party waiving such time of payment cannot consider the debtor in default unless he withdraws the waiver before the time of payment has arrived.
The oral contract in the case before us modified the written contract simply as to the manner of charging the plaintiff with the amount required to satisfy the violations. Such oral contract if carried out in good faith made unnecessary the haste otherwise required to make the slight changes to comply with the notices which constituted the incumbrances or so-called violations.
The defendant by his mutual oral contract with the plaintiff is estopped from now claiming that the plaintiff who relied thereon was in default on the due day of the written contract because of its omission to then have the property free of the violations. -He should not be allowed to take advantage of an omission induced by his unrevolced consent.
(Thomson
v.
Poor, supra; Arnot
v.
Union Salt Co., supra; Swain v. Seamens,
76 U. S. [9 Wall.] 254;
Brede
v.
Rosedale Terrace Company,
216 N. Y. 246.)
Parol evidence of the waiver constituting an estoppel as against the defendant under the circumstances was not error.
(Penn. Steel Co.
v.
Title Guarantee & Trust Co.,
193 N. Y. 37.) We do not think that the objections made by the defendant to the admission of evidence were upon a consideration of the whole record of sufficient consequence to have materially affected the jury or to require further consideration in this opinion.
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.