Morril vs. Chadwick and a., 9 N.H. 84

Parker, J. It appears, from the case, that after the indenture was executed, the plaintiff asked the defendant, Chadwick, if he would take a delivery of the whole of the plates, and look to Roby, the manufacturer, for the concordance plates, to which Chadwick replied that he would—that some of the concordance plates were brought forward at the time, and that Chadwick then agreed to take the delivery of the concordance plates, and look to Roby for them.

This evidence, if admissible for that purpose, might show a waiver of the stipulation in the indenture for a delivery of the concordance plates, by the plaintiff, within sixty days, and a substitution of Roby as the person who should deliver them; and the authorities cited by the defendant’s counsel go far to sustain his position, that a waiver of performance, by a subsequent agreement, may be shown by parol dence, in an action upon an instrument under seal. 3 Johns. Rep. 528 ; 14 Johns. 330; 9 Pick. 298. But some of the cases cited by the counsel in the latter case seem to conflict with this doctrine.

If it is competent to show by such evidence a waiver and extension of the time of performance, there does not appear to be any very strong reason why any other waiver may not be proved by evidence of a similar character. 4 N. H. R. 40, Robinson vs. Batchelder; 7 Cowen 50, Dearborn vs. Cross. Taking this view of the case, another question occurs, which has been suggested by the defendant’s counsel, whether evidence of a waiver of the delivery is admissible under the averment of a general performance by the plaintiff. 3 Esp. R. 54; 3 D. & E. 590, Littler vs. Holland ; and Warren vs. Stagg, there cited; 1 Phil.

Ev. 439 [494.] We do not find it necessary to settle these questions in this case. It is clear that performance of the stipulations contained in the indenture may be shown by parol evidence, notwithstanding the instrument is under seal; and we are of opinion that the plaintiff is well entitled to show, by such evidence, that a partial and formal delivery of part of the plates, with the agreement of Roby to deliver the residue, has been accepted by the defendants as and for a delivery of the whole, and as equivalent to a strict and full compliance with the terms of the indenture. 7 Cowen’s Rep. 48.

What was done by the parties was equivalent to a formal delivery of part of the plates, in the name of, and for the whole, which was agreed to be accepted as a performance of the obligation, the defendants taking the contract of Roby for the actual delivery afterwards; and this may well be proved, as performance, under the plaintiffs declaration. 1 Man. & Sel. 27, Cuff vs. Dunn. Judgment for the plaintiff.