Kester v. Nelson

Contracts ? Sale of Personalty ? Oral Abrogation or Modification of Executory Contract by Mutual Consent Permissible ? Declarations of Deceased Parties to Contract ? Evidence ? Admissibility. Contracts ? Terminating Obligations of Parties by Mutual Consent Permissible. 1. The parties to an executory contract may terminate it by mutual consent independently of any agreement permitting them to do so, it being immaterial whether such termination be characterized abandonment, mutual rescission, modification or waiver, and the effect thereof is to discharge them from obligations previously assumed under the contract. Same ? Making New Agreement Relating to Matter Covered by Former One ? When Former Contract Discharged. 2. Where the parties to a contract make a new and independent agreement concerning the same matter, and the terms of the new are so inconsistent with those of the former one that they cannot stand together, the new agreement may be construed to discharge the preceding one. Same ? Sale of Personalty ? Abandonment or Modification of Contract may be Accomplished Orally ? Declarations ? Parol Evidence Admissible. 3. The mutual abandonment, rescission or modification of a contract for the sale of personal property may be accomplished orally, and the facts relating to the transaction may be established by evidence of oral statements and declarations by the parties made in the presence of witnesses. Same ? Administrators Action ? Sale of Personal Property ? Oral Modification of Contract ? Parol Testimony as to Declarations by Deceased Parties to Contract Held Admissible. 4. In an action by the administrator of the estates of the sellers of meat market equipment against the executor of the buyer to recover the purchase price on which a small installment had been paid, the defendant alleged that by mutual consent of the decedent parties the original agreement had been modified orally to the effect that the bulk of the property should be stored and kept by the buyer until disposed of, and that the partial payment made should be accepted by the sellers in full satisfaction of the remainder of the chattels. Held, under the above rules, that the modification could properly be shown, and that testimony of witnesses as to oral statements and declarations made by the parties, though not the most satisfactory evidence, was admissible, by reason of necessity, to show the agreement. - Page 70