material in leading to the conclusion that the parties intended the entry to be conclusive between them; and it is suggested that as the obligation to make the entry in the book no longer exists, the question is one to be solved by ordinary legal principles, such question being whether the document was intended to be the contract in writing, or if the contract was verbal, whether it is a memorandum (a).

Erle, J., in his very learned and powerful judgment delivered in Sievewright v. Archibald (b), drew attention “to "the distinction between evidence of a contract, and evidence "of a compliance with the Statute of Frauds. The question

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"of compliance with the statute does not arise until the "contract is in proof. In case of a written contract the "statute has no application. In case of other contracts (i.e., unwritten ones), the compliance may be proved by part payment, or part delivery, or memorandum in writing "of the bargain. Where a memorandum in writing is to be proved as a compliance with the statute, it differs from a "contract in writing, in that it may be made at any time "after the contract, if before the action commenced; and any "number of memoranda may be made, all being equally originals.”

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This very significant passage if it does not suggest seems, to say the least of it, to be consistent with the view that where there are several memoranda in existence differing from each other and all purporting to be memoranda of the contract, it is a matter of evidence which of them, if any, is a memorandum of the contract which the parties intended to enter into.

Parol Variations of Written Contracts.

When a contract, which must be in writing under the Sale of Goods Act, has been entered into in writing, it occasionally happens that the parties verbally agree to some alteration in it, or in the mode of carrying it out.

If any disagreement should arise in carrying out the altered

(a) Benjamin on Sale, 5th ed. p. 287.

(b) Sievewright v. Archibald, 20 L. J. Q. B. 529; 17 Q. B. 107.

contract, neither party can bring an action on the verbally altered contract, where the alteration should have been evidenced by writing to be valid. As Lindley, J., said in Hickman v. Haynes (a), in 1875, "Neither a plaintiff nor a "defendant can at law avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing, and required so to be by the "Statute of Frauds."

It becomes a question then whether either party can bring his action on the original contract.

Where the original contract has been rescinded neither party can avail himself of it, and in these cases of parol variations the defendant's argument has frequently been that the original contract must be taken to have been rescinded by the parties when they entered or thought they were entering into a substituted contract.

Where another contract can be proved to have been substituted for the original, as where both were in writing, it is probably a matter of law that the parties intended to rescind the original, but where no substituted agreement by which the parties bound themselves can be proved, it is a question. of fact whether the parties did intend to rescind it when they entered into, or rather intended to bind themselves by, a substituted contract.

There does not seem to be any doubt that a contract which must be in writing may be rescinded verbally (b). If the original contract has not been rescinded either party may bring his action on it provided he can show his readiness and willingness to perform it.

In the case of Vezey v. Rashleigh (c), in 1904, it was held by Byrne, J., on the authority of Price v. Dyer (d) and Robinson v. Page (e), that although to prove rescission of a contract in writing and required by law to be in writing,

(a) Hickman v. Haynes, 44 L. J. C. P. 358; L. R. 10 C. P. 598.

(b) Goss v. Lord Nugent, 5 B. & Ad. 65.

(c) Vezey v. Rashleigh, 73 L. J. Ch. 422; (1904) 1 Ch. 634.

(d) Price v. Dyer, in 1810, 17 Ves. 363.

(e) Robinson v. Page, in 1826, 3 Russ. 114, 121.

parol evidence of a subsequent agreement was admissible, that meant evidence of an agreement for rescission only, and parol evidence of an agreement to vary the terms of the contract was inadmissible.

In several of the following cases there was a request by one party to postpone delivery, and it was urged in argument that the agreement to postpone amounted to a substituted contract the same as the original in all respects except as to the time of delivery; but this is not necessarily nor usually the case. Such an agreement generally amounts to nothing more than a licence by one party to the other to depart in that particular respect from the terms of the agreement, and is not a contract at all.

In Cuff v. Penn (a), in 1813, the defendant agreed to buy bacon of the plaintiffs, to be delivered in certain quantities on certain days. After some of the deliveries had been made the defendant represented to the plaintiffs that the sale of bacon was dull and requested them not to press it on him, and they assured him they would not, and consequently they postponed the deliveries. Eventually the defendant refused to accept any. And when the plaintiffs brought their action for not accepting it was argued for the defendant that the plaintiffs were suing on a contract which was a parol variation of a written contract, or was a parol contract substituted for a written one, in which case it would be void under the statute, for there had been neither a part acceptance nor a part payment. But Lord Ellenborough, C. J., overruled both objections, and the Court upheld the verdict for the plaintiffs.

In Stead v. Dawber (b), in 1839, the plaintiff agreed in writing to buy of the defendants a sloop-load of bones to be delivered on the 20th to the 22nd. Some days afterwards the plaintiff's broker pointed out that the 22nd was a Sunday, and asked the defendants if they would deliver all the bones on the 21st. The defendants said, "You had better say the "23rd or 24th." The price of bones having risen, they were

(a) Cuff v. Penn, 1 M. & S. 21.

(b) Stead v. Dawber, 10 A. & E. 57.

not sent. Lord Denman, C. J., delivering the judgment of the Court, said that the question was mainly one of fact, viz., did the parties intend to substitute a new contract for the old one, the same in all respects except those of the day of delivery and payment. The Court being of opinion that they did, ordered a verdict to be entered for the defendants.

This case was considered to have overruled Cuff v. Penn (a), but is itself very doubtful law.

In Marshall v. Lynn (b), in 1840, the defendant contracted in writing to buy of the plaintiff a quantity of potatoes to be shipped on board the plaintiff's brig, The Kitty, on her arrival at Wisbech the next time. On her arrival there, the defendant's son requested that she might first go to Lynn and from there take a cargo to London and then return to Wisbech. The plaintiff sent her accordingly. When she had returned to Wisbech and the plaintiff offered to load her, the defendant refused to take the potatoes. The plaintiff was non-suited on the ground that this was a parol variation. of a written contract and was not binding.

It appears to have been considered in some of the preceding cases that the parol variation to raise a presumption of rescission must have been an essential part of the contract. Parke, B., said that this was unnecessary, for that "every part of the contract in regard to which the parties are "stipulating, must be taken to be material."

Baron Parke approved of Stead v. Dawber (c), but it seems pretty clear that Stead v. Dawber (c) was wrongly decided, and is distinguishable from Marshall v. Lynn (b).

Goss v. Lord Nugent (d), in 1840, established, in the case of a contract relating to an interest in land, that if the original contract be varied and a new contract as to any of its terms substituted in the place of it, the new contract cannot be enforced unless it be also in writing.

(a) Cuff v. Penn, 1 M. & S. 21.

(b) Marshall v. Lynn, 9 L. J. Ex. 117; 6 M. & W. 109.

(c) Stead v. Dawber, 10 A. & E. 57.

(d) Goss v. Lord Nugent, 5 B. & Ad. 65.

In Moore v. Campbell (a), in 1854, the contract note on which the action was brought for not delivering, stated that the delivery of the hemp was to be from the quay. When the defendant informed Wilks, the plaintiff's agent, that the hemp had been put on the quay, Wilks requested that it might be warehoused on the plaintiff's account, which was done. Wilks then told the defendant to draw on the plaintiff for the hemp as soon as he was in a position to transfer it. Owing to a difference about the quantities, Wilks refused to give the defendant the plaintiff's acceptances. It was argued for the defendant, who had resold the hemp, that a verbal contract to deliver from the warehouse had been substituted for the written contract to deliver from the quay, and that the written contract was therefore rescinded. Parke, B., said, "We do not think that this plea was proved by this evidence. If a new valid agreement substituted "for the old one before breach would have supported the 'plea, we need not inquire, for the agreement was void."

In Noble v. Ward (b), in 1866, the defendants on the 12th of August contracted to purchase goods from the plaintiff to be delivered within stated times. On the 18th they entered into another contract in writing for the purchase of goods to be delivered and paid for within stated times. On the 27th the parties verbally agreed that the contract of the 12th should be cancelled and the time for delivery and payment under the contract of the 18th should be extended. The defendants eventually refused to take the goods. And it was argued for them that the contract of the 18th was rescinded by the substitution of that of the 27th, which was admitted to be invalid. At the trial the plaintiff was nonsuited on this ground. On the motion for a new trial, which was granted, Bramwell, B., delivering a judgment which was concurred in by the other Judges, was of opinion that the contract of the 18th was not in fact rescinded. The Exchequer Chamber affirmed this judgment-Willes, J.,

(a) Moore v. Campbell, 26 L. J. Ex. 310; 10 Ex. 323.

(b) Noble v. Ward, 35 L. J. Ex. 81; 36 L. J. Ex. 91; L. R. 1 Ex. 117; L. R. 2 Ex. 135.