and the provision has been copied in the statutes of Oklahoma, 38d Nor does it make any difference that the original written contract provided that it should not subsequently be varied except by writing. This stipulation itself may be rescinded by parol and any oral variation of the writing which may be agreed upon and which is supported by sufficient consideration is by necessary implication a rescission to that extent.39 The effect of the Statute of Frauds upon attempts to rescind contracts within it has previously been considered. 40 § 1829. Rescission of unilateral contracts. If the original contract was unilateral or has since its formation become unilateral by the discharge of one party to the contract, either by his own performance or otherwise, a mutual agreement to rescind without more has no consideration. The question is not one of words, but of substance. Whether the parties talk of "rescission," "release," "discharge," "waiver," "gift," or "forgiveness" of the obligation is immaterial. As one party only was entitled to anything under the original contract at the time of the attempted rescission, he alone promises to give up anything by agreeing to rescind or discharge the obligation; and the invalidity of such an agreement is clearly recognized by the decisions 41 except in three classes of cases: oral contract in substitution of a prior written one is upheld. Pearsall v. Henry, 153 Cal. 314, 95 Pac. 154. Cf. Bennett v. Potter (Cal.), 183 Pac. 156; Imperator Realty Co. v. Tull (N. Y.), 127 N. E. 263, 265. 38d Rev. Laws (1910), § 988. See Levin v. Hunt (Okl.), 172 Pac. 940; Emerson-Brantingham Imp. Co. v. Ware (Okl.), 174 Pac. 1066; Hart v. Frost (Okl.), 175 Pac. 257. 39 Tilley v. Bartow, 8 Ala. App. 639, 62 So. 330; Viele v. Germania Ins. Co., 26 Ia. 9, 96 Am. Dec. 83; Nichols & Shepard Co. v. Maxson, 76 Kan. 607, 92 Pac. 545; Denoth v. Carter, 85 N. J. L. 95, 88 Atl. 835; Beatty v. Guggenheim Exploration Co., 225 40 Supra, § 592. 41 Foster v. Dawber, 6 Ex. 839, 851; Edwards v. Walters, [1896] 2 Ch. 157, 168; Westmoreland v. Porter, 75 Ala. 452; Florence Cotton Co. v. Field, 104 Ala. 471, 16 So. 538; Mobile &c. R. R. Co. v. Owen, 121 Ala. 505, 25 So. 612; Swan v. Benson, 31 Ark. 728; Mendel v. Davies, 46 Ark. 420; Davidson v. Burke, 143 Ill. 139, 32 N. E. 514; 1. Agreements made before breach of a unilateral contract to discharge the promisor. 2. Agreements to discharge a party to a negotiable instrument, whether the agreement be made before or after maturity of the instrument. 3. Certain exceptional cases, ordinarily classified under the head of waiver, which have been discussed in an earlier chapter. 42 § 1830. English decisions on parol discharge of unilateral contracts. In several short cases decided about the year 1600, it was decided or said that an agreement made before breach of a unilateral simple contract to discharge the promisor was effectual.43 The appropriate words for alleging such an agreement were that the plaintiff exonerated or discharged the defendant. The point seems not to have been again discussed until the nineteenth century, when several cases were decided which touch upon it. In the first of these 44 the plea to an action for breach of promise of marriage was that before any breach the plaintiff "absolved, exonerated, and discharged the defendant." On special demurrer it was urged that the plea should have alleged rescission by mutual assent. But the plea was held good on the strength of the early decisions. court, however, said the question was merely as to a matter of form, for though the plea was good, "yet we think the defendant will not be able to succeed upon it at nisi prius, in case issue Metcalf v. Kent, 104 Ia. 487, 73 N. W. 1037; George v. Lane, 80 Kan. 94, 102 Pac. 55; Garnsey v. Garnsey, 116 Me. 295, 101 Atl. 447; Averill v. Wood, 78 Mich. 342, 354, 44 N. W. 381; Young v. Power, 41 Miss. 197; Zerr v. King, 121 Mo. App. 286, 98 S. W. 822; Northwestern Nat. Bank v. Great Falls Opera House, 23 Mont. 1, 57 Pac. 440; Landon v. Hutton, 50 N. J. Eq. 500, 25 Atl. 953; Crawford v. Millspaugh, 13 Johns. 87; Weed v. Spears, 193 N. Y. 289, 86 N. E. 10; Whitehill v. Wilson, 3 Pen. & Watts, 405, 413, 24 Am. Dec. 326; Kidder v. Kidder, The 33 Pa. 268; Marron v. Stieren, 252 43 Coniers and Holland's Case, 2 Leon. 214; Langden v. Stokes, Cro. Car. 383; Milward v. Ingram, 2 Mod. 43; Edwards v. Weeks, 2 Mod. 259. See also Treswaller v. Keyne, Cro. Jac. 620; May v. King, 12 Mod. 537; Weston v. Mowlin, 2 Burr. 969, 978. 44 King v. Gillett, 7 M. & W. 55. be taken upon it, unless he proves a proposition to exonerate on the part of the plaintiff, acceded to by himself, and this in effect will be a rescinding of the contract previously made." It is apparently thought by some writers 45 that the decision in some way discredits the early authorities, but this seems a mistake. The court simply said that mutual assent was necessary to make out the defence, but this is not saying that consideration was necessary. In later cases the English courts have never considered this decision. As the contract in question was bilateral, there was, undoubtedly, consideration if there was an agreement to rescind. The question was merely whether mutual assent was alleged with sufficient certainty. In a subsequent case 46 an action was brought for breach of an independent obligation to pay a deposit to an auctioneer as security for future performance of a contract for the sale of property, and the defendant pleaded leave and license. On demurrer the court held the plea bad as not equivalent to "exonerated and discharged," but the implication is clear that a plea in the latter form would have been held good, and one member of the court, Bramwell, B., not only said so, but expressed the opinion that even in its actual form the plea was good, saying: "In an action on a simple contract, a plea of exoneration before breach is good." 47 There is a dictum to the same effect by Lindley, L. J., in a more recent case. 48 It is true that Parke, B., in the meantime had said obiter 49 "an executed contract cannot be discharged except by release under seal, or by performance of the obligation, as by payment, where the obligation is to be performed by payment." It is to be noticed, however, that Parke is not speaking of the situation before breach and though his remark is applicable both to broken and unbroken contracts, cases arise far more commonly in regard to 45 Anson on Contracts (13th ed.), 321; Id. (Corbin's Ed.), 480; Clark on Contracts, 609. Dobson v. Espie, 2 H. & N. 79. "Bramwell adds in support of his statement: "The law is thus laid down in Byles, on Bills, p. 168 (7th ed.) 'It is a general rule of law, that a simple contract may, before breach, be waived or discharged, without a deed and without consideration; but after breach there can be no discharge except by deed or upon sufficient consideration." So in 16th ed., p. 311; 1 Smith's Leading Cases (12th Eng. ed.), 388, (9th Am. ed.) 614. 48 Edwards v. Walters, [1896] 2 Ch. 157, 168. 49 In Foster v. Dawber, 6 Ex. 839, 851. the former. In any event, Parke was speaking without having the authorities before him and with his mind addressed to another matter. In view of the later cases already referred to the English law seems still to be that exoneration before breach is good without consideration. 1831. American decisions. In the United States there are a few dicta 50 to the same effect, and there is a decision in Wisconsin 51 involving the point, which held exoneration good. But there are authorities of contrary effect, 52 and in view of this as well as the opinion of American text writers, 53 and the absence of any underlying principle to support the English doctrine, it seems probable that as a general rule consideration will, in most States, be held essential. Cases may be suggested, however, where the promisor should clearly be held discharged. Suppose the promisee informs the promisor that performance will not be required, and relying on this the promisor is not ready to perform at the day, or has so altered his position that he cannot perform at all. Though promissory estoppel is not ordinarily a substitute for consideration, 54 justice demands that in the cases supposed the promisee should not be allowed to hold the promisor liable for his non-performance. It may well be that a recognition of the possibility of the injustice here suggested led the early judges to hold exoneration good without consideration. At the present day it would seem better to apply, when necessary, the doctrines previously considered under the head of waiver, 55 but subject to this modification to require consideration. 50 Robinson v. McFaul, 19 Mo. 549; Seymour v. Minturn, 17 Johns. 169, 175, 8 Am. Dec. 380; Kelly v. Bliss, 54 Wis. 187, 191, 11 N. W. 488. 51 Hathaway v. Lynn, 75 Wis. 186, 43 N. W. 956, 6 L. R. A. 551. 52 Hale v. Dressen, 76 Minn. 183, 78 N. W. 1045; Collyer v. Moulton, 9 R. I. 90, 98 Am. Dec. 370; Ripley v. Ætna Ins. Co., 30 N. Y. 136, 164, 86 Am. Dec. 362. See also Metcalf v. Kent, 104 Ia. 487, 73 N. W. 1037. Bowman v. Wright, 65 Neb. 661, 91 N. W. 580, 92 N. W. 580; Purdy . Rome, etc., R. Co., 125 N. Y. 209, 26 N. E. 255. 53 Clark on Contracts, 608; Harriman on Contracts (2d ed.), § 505; 24 Am. & Eng. Encyc. of Law (2d ed.), 287. 54 See supra, § 139. § 1832. Parol discharge of a party to a negotiable instrument; English law. The following extract from the opinion of Parke, B., in the leading case on the subject 56 sufficiently expresses the English law prior to the enactment of the Bills of Exchange Act in 1882: "The rule of law has been so often laid down and acted upon, although there is no case precisely on the point as between immediate parties, that the obligation on a bill of exchange may be discharged by express waiver, that it is too late now to question the propriety of that rule. In the passage referred to in the work of my brother Byles, the words 'it is said' are used, but we think the rule there laid down is good law. We do not see any sound distinction between the liability created between immediate and distant parties. Whether they are mediate or immediate parties the liability turns on the law merchant, for no person is liable on a bill of exchange except through the law merchant; and, probably, the law merchant being introduced into this country, and differing very much from the simplicity of the common law, at the same time was introduced that rule quoted from Pailliet 57 as prevailing in foreign countries, viz., that there may be a release and discharge from a debt by express words, although unaccompanied by satisfaction or by any solemn instrument. Such appears to be the law of France, and probably it was for the reason above stated that it has been adopted here with respect to bills of exchange. But Mr. Willes further contended, that though the rule might be true with respect to bills of exchange, it did not apply to promissory notes, inasmuch as they are not put upon the same footing as bills of exchange by the statute law. . . . Now bills of exchange and promissory notes differ from other contracts at common law in two important particulars: first, they are assignable, whereas choses in action at common law are not; and secondly, the instrument itself gives a right of action, for it is presumed to be given for value, and no value need be alleged as a consideration for it. In both these important particulars promissory notes are put on the same footing as bills of exchange by the statute of Anne, and, therefore, we think the same law Foster v. Dawber, 6 Ex. 839, 57 Manuel de Droit Civil, Code Civ., liv. 3, tit. 3. s. 3, 851. |