Delacroix vs. Bulkley, 13 Wend. 71

By the Court, Savage, Ch. J. The only question arising upon the bill of exceptions in this case is, whether the evidence offered shall have been received 1 The law has been understood to be well settled, that a covenant tinder seal, not broken, cannot be discharged by a.parol agreement. 1 Taunt, 430. 10 Wendell, 184, 11 id. 30. It has been supposed by counsel that some cases in this court contain a contrary doo= trine. The case of Fleming v. Gilbert, 3 Johns.

R. 530, as stated in the opinion of the court, was upon a bond, the con-dition of which substantially was, that the defendant should by a certain day procure and deliver to the plaintiff a certain bond and mortgage, and discharged the same from the record.

The defendant did procure the bond and mortgage and offered them to the plaintiff, and offered to do whatever he required further-to discharge the mortgage of record; but the plaintiff, not knowing what was necessary, entered into another agreement respecting further proceedings, by reason of which the defendant was prevented from talcing further measures to discharge the mortgage of record. This case is put upon the principle, that he who prevents a thing being done, shall not avail himself of the non-performance he has occasioned. Lattimore v. Harsen,14 Johns.

R. 330, recognizes thedoctrine that an agreement under seal, to perform certain work, may be discharged by a subsequent parol agreement to perform the same work on different terms. This was after an avowal on the part of the plaintiffs that they would not fulfil their written contract. The court say the plaintiffs had a right to forfeit the penalty, and after notice of such intention, the defendant entered into the new arrangement, and there was a sufficient consideration for the new promise. Hasbrouck v. Tappen, 15 Johns.

R. 200, was an action of covenant for not conveying land, according to agreement, by a particular day, free from encumbrances. The land was not conveyed, and the defendant attempted to excute himself, on the ground that the plaintiff had said he would taire no advantage if the conveyance was not made at the precise day. When the defendant afterwards offered to execute a deed, the plaintiff declinedreceivingit—noton theground thatthe time had elapsed, but because the property was encumbered. The court held that the plaintiff had not waived his right of action by the indulgence he had granted.

It was said that this was not a new agreement, particularly as such agreement by parol would be void by the statute of frauds. A void agreement can never be considered an alteration of a valid contract. Dearborn v. Cross & Thrasher, 7 Cowen, 48, decides that a bond may be discharged by the parol agreement and acts of the parties. The plaintiff gave the defendant Cross a bond, conditioned to convey certain premises, and Cross went into posssession. Subsequently the parties by parol agreed to rescind the agreement to purchase) and Cross gave up the possession to the plaintiff, who sold to another person.

The court said, that under such a state of facts, Dearborn could not recover from Cross the consideration of the purchase which had been rescinded; but it is there expressly said that it is not intended to decide that a parol agreement to rescind a sealed contract is binding as an executory agreement. The extent to which these cases have gone is this: that after a breach of a sealed contract, the parties to it may discharge any liability upon it by entering into a new agreement in relation to the same subject matter, which new agreement is a valid contract, founded uponsufficientconsideration. Li Fleming v.

Gilbert, it is assumed that the plaintiff prevented the defendant from performing his contract, and therefore should not take advantage of his failure. Here it is not pretended that any thing was done or said by the plaintiff to prevent the defendant from a literal compliance with his contract. To bring this case within the principal of Lattimore v. Harsen, there should have been not only an avowed refusal to perform, but a subsequent executed substituted agreement: and so, also, as to the case of Dearborn v. Cross & Thrasher.

Had the plaintiff in this case not only waived the sealed contract by parol, but had accepted and taken possession of the new store, in lieu of that which he was to have had by his sealed contract, the cases would have been more nearly parallel.

It will be seen, then, that there has been no innovation upon established principles, and that the law remains as it has always existed, that a sealedexecutory contract cannot be released or rescinded by a parol executory contract; but that, after breach of a sealed contract, a right of action may be waived or released by a new parol contract in relation to the same subject matter, or by any valid parol executed contract.

The offer in this case was not that any new agreement had been entered into between these parties, either executed or executory, but that the plaintiff assented to the taking down the old building and the erection of the National Hotel; that he stood by and advised this change, or assented to the same, and spoke of the store in the new building as the one which he was to have, and made suggestions as to the manner of fitting it up.

So far as this evidence has any bearing upon any contract, it can-only be executory; but it proves no contract at all&emdash;it only proves a parol assent, without any consideration, to the defendant’s departure from his sealed contract. This was properly excluded, The court below decided correctly, and their judgment must be affirmed. Judgment affirmed.