M'VOY vs WHEELER et al., 6 Port. 201

COLLIER, C. J. — Several questions were raised in ¡the Circuit court, upon the demurrers to the declaration and pleas, which were so disposed of, as to make it necessary for an issue of fact to be tried by the jury, who found a verdict for the plaintiffs, on which judgment was rendered. At the trial, a bill of exceptions was taken by the defendant below, who prosecutes a writ of error to this court, and assigns the judgment on the demurrers, and the decision of the court excepted to, as causes for reversal.

We shall only consider the sufficiency of the declaration, which presents the question, whether an action of covenant will lie upon an agreement under seal, (to perform certain work,) which has been modified, or -the time of performance enlarged by parol. Covenant can only be maintained upon a writing-under seal. If a contract be unattested by a seal, or, is unwritten, the action by which redress can be had, for a non-performance, is debt or assumpsit, or either, according to the subject matter.

If new tern s are introduced into a contract, other duties imposed, or another day provided for its consummation, it is clear, that the original contract does not remain unimpaired, so that an action would he for a brcac h of its stipulations. — If then, no action could bo maintained upon the original contract, when thus modified, we think it follows, that the present action is misconceived. For though the modifications, are set out in the declaration, yet they are to be shewn by parol, and can not, according to the premises, we have assumed, bo made the básis, either in whole or in part of an action of covenant.

The case of Littler vs Holland was an action of covenant, upon an agreement under seal, to build two houses by a certain day. It appeared on the trial, that the time of performance was enlarged by parol, and that the houses were built within the enlarged time. This evidence, it was held, did not support the allegation in the declaration, and the plaintiff was non-suited. So, in Brown vs Miller, an action of debt was brought on a bond to submit to arbitration. The condition limited the time for the arbitrator to make his award.

The declaration alleged that the time was enlarged by mutual consent, and that the award was made within that time. On demurrer, it was determined, that the remedy on the bond was gone, by the failure to make the award within the time contemplated by its condition. To the same effect, also, is the case of Freeman vs Adams. In Philips et al. vs Rose, the plaintiff agreed to build an oil-mill within a prescribed time, which was enlarged by parol, and the work conrpleted within the enlarged time. — The court held that evidence of the enlargement would not support the declaration. And in Jewell et al. vs.

Schroeppel, the court consider the law as settled, “ that the plaintiffs, inasmuch as they had not performed, within the time stipulated, by the original contract, could not recover upon the covenants contained in it.

They could not, in such an action, give evidence 'of an extension of the time.” • In Langworthy vs Smith, the Supreme court of New York re-affirm the previous decisions of that court, on the point, and consider it as beyond doubt', that a parol agreement to enlarge the time for the performance of covenants, is good; and that by an enlargement, the remedy upon the covenant itself, is lost, and must be sought upon the agreement enlarging the time of the performance.

In the case at bar, the declaration shows, that the contract was so materially varied, and the labor of the defendants so greatly increased, that they could not perform it until several months after the expiration of the day therefor appointed. It will, therefore follow, that the action cannot be maintained, and that the plaintiffs must resort to their remedy .upon the pa-rol agreement; 'making the covenant, so far as material, inducement to the action. The judgment is reversed. 3 Term Rep. 590. 3 “ “ 590. 9 Johns. Rep. J15. 8 “ “ m 4 Cowen, 565. 2 Wend. 587.