a warranty deed in favor of parties of the second part [defendants], subject only to the mortgage hereinabove referred to, which deed, together with a copy of this contract, shall be placed in escrow in the Security State Bank of Palouse, Washington, where the payments provided for hereunder shall be made, and conditioned that, upon full compliance with the terms of this contract, said deed shall be delivered to parties of the second part."

The deed so executed and a copy of the contract were accordingly placed in escrow with the Security State Bank of Palouse. The first instalment of $2,000 and interest being unpaid, on January 13, 1923, the plaintiffs commenced this action seeking recovery from the defendants of the amount of that instalment, and also interest claimed by them to be then due upon all of the instalments. At that time the defendants were in default in the payment of the principal of the mortgage debt and a considerable portion of the interest thereon. Evidently because of this fact a renewal of the mortgage could not be obtained from the insurance company, at least not until the interest should be paid. However, as we think the record clearly shows, the plaintiffs were ready and willing to execute any papers necessary to accomplish such renewal. All that the defendants had to do to that end was to pay the interest and induce the insurance company to accede to such renewal of the mortgage as to which they had agreed "to assume responsibility." The trial court found "that there was an attempted oral rescission of the contract, but same was not sufficiently acted upon."

The principal contention here made in behalf of the defendants seems to be that there was a mutual oral rescission of the contract. The finding of the trial court on that subject, touching the question of whether or not there was in fact such an agreement between the parties, goes no farther than finding that there was "an attempted re

scission." Viewing this finding in the light of the evidence, purely as a question of fact as to whether or not the minds of the parties so met, it seems to us that the trial judge must have meant thereby nothing more than that the defendants attempted to so effect a rescission of the contract; since the evidence, it seems to us, wholly fails to show a meeting of the minds of the parties as to any agreement for mutual rescission, with that degree of certainty required in cases of this nature. But, if we are in error in this view as to the failure of the meeting of the minds of the parties evidenced by their oral expressions, still the Statute of Frauds stands in the way of any such orally agreed rescission becoming in law effective; contract.

since the evidence,

Contractseffect of oral

agreement to

rescind land

we think, as the trial court manifestly did, wholly fails to show any acts of part performance on the part of any of the parties with reference to any such oral agreement, or any acts done by either of them in pursuance of any such oral agreement, placing either of them in any different position so far as prejudicing their rights is concerned, with reference to the subject-matter of the contract. The original contract being in writing, and the subjectmatter being such as to require it to be in writing, any agreement for rescission of it must also be in writing, unless a mutual oral rescission of it be rendered effective by part performance. Woolen v. Sloan, 94 Wash. 551, 162 Pac. 985; McInnis v. Watson, 116 Wash. 680, 200 Pac. 578.

Some contention seems to be made in behalf of the defendants, rested upon the theory that the plaintiffs neglected and refused to execute papers necessary to the renewal of the mortgage, and that thus the defendants were privileged to elect to rescind the contract as for default upon the part of the plaintiffs. This, we think, is effectually answered by the fact that the defend

Vendor and

of failure to

conse

ants failed to pay the interest on the mortgage debt and purchaser-effect failed to induce the insurance company execute papers. to assent to a renewal of the mortgage. Any failure of the plaintiffs to execute papers necessary to the renewal of the mortgage becomes of no quence in view of this fact. Conditions had not arisen where it became necessary for the plaintiffs to execute any such papers looking to the renewal of the mortgage. The failure of the necessary conditions precedent to the obligation of the plaintiffs to execute such papers was wholly the fault of the defendants themselves. By express agreement

in the contract they assumed the responsibility of inducing the insurance company to assent to a renewal of the mortgage. Not having done this, they manifestly cannot complain of the plaintiffs' neglect to execute the necessary papers to that end. Besides, we are convinced, as the lower court manifestly was, that the plaintiffs have at all times been ready and willing to execute such papers whenever the defendants would place themselves in such a position that they would be entitled to have such papers executed.

The judgment is affirmed.

Main, Ch. J., and Tolman, Holcomb, and Mackintosh, JJ., concur.

I. Introduction, 294.

II. Rule that oral rescission is good:

a. In general, 295.

b. Theory, 297.

c. Facts, 299.

III. Rule that oral contract must be acted upon to make the rescission good:

a. In general, 301.

I. Introduction.

The weight to be given to many of the cases passing upon the validity of an oral rescission of a written contract for the sale of land is difficult to determine, because of the fact that it does not appear whether or not the oral rescission was acted upon. According to other cases, this fact is determinative. See infra, III. Again, other cases emphasize the form of action. In suits for specific performance, where the oral rescission is pleaded on the defensive, the courts are more apt to sustain the oral rescission than in an action in which the rescission is the basis of an action for affirmative relief. See infra, V. The validity of an oral rescission is sustained in some cases on the theory that the Statute of Frauds relates only to a contract for the sale of real estate,

a. In general, 304.

b. Theory, 307.

c. Facts, 308.

V. Rule denying specific performance of contract that has been orally rescinded, 308.

and does not apply to its discharge. Under such a theory an oral rescission, wholly executory, would be sustained. The theory of other cases sustaining the oral rescission is not so clear. In many of them the fact that action has been taken on the oral rescission is doubtless an important element, although this may not expressly appear in the opinion. Conversely, in cases denying the validity of an oral rescission, it is doubtless an element of weight in the decision that the oral rescission was wholly executory, although this may not be expressly made a condition of the denial of the validity of the rescission. As hereinafter shown, other cases expressly base the denial of the validity of the oral rescission upon the fact that it was wholly executory.

The surrender of a written lease by

North Dakota. Mahon v. Leech (1902) 11 N. D. 181, 90 N. W. 807. This case has been approved and followed in Wadge v. Kittleson (1903) 12 N. D. 452, 97 N. W. 856; Haugen v. Skjervheim (1905) 13 N. D. 616, 102 N. W. 311; Wisner v. Field (1905) 15 N. D. 43, 106 N. W. 38; Ottow v. Friese (1910) 20 N. D. 86, 126 N. W. 503, and Harrington v. Eggen (1924) - N. D. -, 199 N. W. 447.

Oregon. Guthrie v. Thompson (1861) 1 Or. 353; Elliott v. Bozorth (1908) 52 Or. 391, 97 Pac. 632.

South Carolina. Moseley v. Witt (1907) 79 S. C. 141, 60 S. E. 520; Lewis v. Cooley (1908) 81 S. C. 461, 62 S. E. 868.

In some of the North Dakota cases there seems to have been an abandonment of the contract, rather than an agreement of rescission.

An executory agreement to abandon a land contract was held invalid under the Statute of Frauds in Carr v. Williams (1877) 17 Kan. 575. The au

thority of this case is seriously impaired, if not overruled, by the subsequent decision in Ely v. Jones (Kan.) supra, where the Kansas court makes some distinction between the case at bar and the facts in Carr v. Williams. The court in the later case, however, concludes that "the statement in the opinion in Carr v. Williams (Kan.) supra, that such an agreement falls within the Statute of Frauds, and is void unless in writing or fully executed, is disapproved, and we hold, with what we consider to be the weight of authority and sound reasoning, that such a contract is not required to be in writing, and may be established by the same kind of proof as other simple contracts."

At least, the parol rescission is good if accompanied by the destruction of the contract. Sieker v. Sieker (1911) 89 Neb. 123, 130 N. W. 1033.

In many of the cases it appears that possession had not been delivered to the vendee, without any point being made of this fact. See North Carolina cases, infra, III. c. In some cases a point is made of this fact, and it is held that where possession has not been taken by the vendee, there may be a valid rescission of the contract by oral agreement. Jones v. Booth (1882) 38 Ohio St. 405, denying specific performance after such rescission. In Arrington v. Porter (1872) 47 Ala. 714, the parol rescission of a sale of land was sustained although the vendor had conveyed the same by a deed, and taken a mortgage back, where the original purchase price had not been paid, and the vendor obtained the deed, which he had executed and delivered, and received possession of the land with the consent of his vendee. The court states that a rescission of the sale under such circumstances is virtually a sale of the land by the original vendee to the vendor. It is stated, further, that possession by the purchaser with the consent of the vendor, under a parol contract of sale, takes the case out of the Statute of Frauds. It is stated, further, that,

upon the rescission of the contract, the purchase price was virtually paid by the original vendor by the extinguishment of the original purchase price, and that, having obtained possession of the land, there was only needed a proper conveyance to complete the sale; that either party could enforce this.

A contract for the sale of timber in exchange for an automobile, which had been executed by the delivery of a deed to the timber and a note evidencing the balance of the purchase price for the automobile, and the delivery of the automobile to the vendor of the timber, but under which the purchaser of the timber had not taken possession thereof, was held revocable by an oral agreement under which the purchaser of the automobile redelivered it, although the purchaser of the timber failed to surrender the timber deed, or convey it back to the original owner. Robertson v. Lain (1925) Ark., 269 S. W. 574. It was accordingly held that the original owner of the timber could defend an action by the purchaser thereof to quiet title to the land.

See Dougherty v. Catlett (1889) 129 Ill. 431, 21 N. E. 932, infra, III. a.

Other cases lend indirect support to the general theory discussed in this subdivision. Parol proof of a release from a valid contract in writing regarding real estate is recognized in Crancer v. Lareau (1924) 1 F. (2d) 117, but it is held that it must be clearly and convincingly established. The court in Davis v. Benedict (1887) 9 Ky. L. Rep. 200, 4 S. W. 339, seems to recognize the sufficiency of the parol agreement to rescind a contract for the sale of land, but holds that the proof of such a rescission by parol should be clear and convincing, and the testimony in that case was held to fall far short of this test. In Flaherty v. Goldinger (1924) 249 Mass. 564, 144 N. E. 374, the court states in a case in which there was no express agreement that the contract should be rescinded, that the circumstance that the contract related to real estate did not prevent the parties rescinding it orally by mutual consent. In Ballou

v. Billings (1884) 136 Mass. 307, an action by the purchaser of land to recover money paid under the contract of purchase, upon refusal of the vendor to convey, the court states that it has been held in that jurisdiction that a contract under seal may be rescinded by parol, citing Hill v. Green (1826) 4 Pick. (Mass.) 114, and Munroe v. Perkins (1830) 9 Pick. (Mass.) 298, 20 Am. Dec. 475. It is stated in Negley v. Jeffers (1875) 28 Ohio St. 90, that "where the original contract is in writing as required by statute, it may be varied as to the time of payment, or wholly waived or discharged as to such payment, by subsequent parol contract founded on a new consideration." An agreement between the vendor and vendee of land, title to which was in the United States, and the holder of a certificate of entry of the land, who was under contract to transfer the certificate to the vendor, that the holder of the certificate should transfer it directly to the vendee, and that the vendor and the holder of the certificate should pay the vendee sufficient to obtain the patent to the land, on the conclusion of which agreement the vendor and vendee gave an order upon the custodian of the land contract to deliver up the same to be canceled, was held in Reed v. McGrew (1832) 5 Ohio, 375, to be a discharge of the vendor's agreement to convey.

But see Ohio cases discussed in IV.

a, b.

It is stated in Brownfield v. Brownfield (1892) 151 Pa. 565, 25 Atl. 92, that a contract in writing for the purchase and sale of land may be rescinded by parol. The case of Boyce v. M'Culloch (1842) 3 Watts & S. (Pa.) 429, 39 Am. Dec. 35, is stated to have decided that question. The court in Boyce v. M'Culloch, however, does not go to that extent, as appears infra, V. a. It is further stated in Brownfield v. Brownfield, however, that, to make a parol rescission effectual as against the purchaser, there must be a yielding up of the possession or some other equally unequivocal act.

In an action of ejectment in which the defendant set up a verbal contract