Epitomized Opinion

Gaydos sued Blanche Hassel and Benedict Hassel to recover damages for breach of a contract by which it was claimed that the defendant sold a certain farm to the plaintiff. According to the written agreement defendants agreed to sell and convey the property to Gaydos “at any time on or before Mar. 1, 1922, upon the exercise of the within option” was to pay certain moneys. It waas also agreed that if this option was exercised, the defendants should retain possession until'April 1st, 1922 and also that if not purchased by Mar. 1, 1922, the plaintiff lost all right to the deposit which he had made in the beginning. ■ It was not claimed that the plaintiff complied with said contract on or before Mar. 1, 1922, but it was claimed that a subsequent oral agreement was made extending the time of performance on the part of Gaydos. No money was ever tendered to the defendant. The case was tried upon the theory that the contract was an absolute contract of sale and that the subsequent verbal arrangement between the parties was a mere modification of the time of payment. The trial resulted in a verdict and judgment in favor of plaintiff, whereupon defendant prosecuted error. In reversing the judgment, the Court of Appeals held:—

1. A modification of a contract being a new contract, a consideration is necessary to support the new agreement, as, when it is to extend the time of payment.

2. As the written agreement was a mere offer on the part of the defendants, which Gay-dos had a right to accept at any time within the six months, the most that can be said in regard to the extension of time is that the defendants made -a new offer which was not accepted by the plaintiff by a tender or offer to perform the contract. Therefore, the defendants were not bound to perform.

3. As there was no evidence in support of any consideration for a new agreement, or modification of the written agreement, the modification is not binding.

4. As vthe modification was executory and not in writing, it came within the provisions of the statute of-frauds and for this reason is not enforceable.