¶1The opinion of the court was delivered by
¶2The only decision of the court which was excepted to, and which seems to have been made in this case, was that rejecting the oral evidence offered to show a change in the written contract by substituting another person for the one named in the contract, to make the survey of the land. We can not, therefore, with any propriety, consider any other question. Upon this decision the plaintiff submitted to a judgment against him, with leave to except to this ruling of the court.
¶3In regard to this question, the English authorities, and those in this country, as far as we have been able to examine them, seem to be all in one direction. In regard to all written contracts where alterations are made without writing the substituted agreement all virtually rests on mere oral evidence, and if an action is to be maintained, it should be predicated upon the altered contract, and not *619upon the original one. And if the original contract is set forth in the declaration, it is merely as inducement to the contract finally consummated by the alteration.
¶4It is upon this ground that it has been often held in this state, that when a contract under seal is altered in any of its terms by an oral contract, the contract thereby becomes merely a simple contract, and no action can be maintained upon the original contract.
¶5This rule applies with special force to contracts for the sale of land, which by the statute of frauds are required to be in writing. If any of the terms of such contract are altered by contract not in writing, the entire contract is thereby reduced to the grade of a mere unwritten contract, upon which the statute expressly declares that no action shall be maintained.
¶6This is expressly declared in Goss v. Lord Nugent, 5 B. & Ad. 66; Parteriche v. Powlet, 2 Atk. 384; and in the comparatively late case of Stowell v. Robinson, 3 Bing. N. C. 928.
¶7And so late as 1836, in Harvey v. Grabham, 5 Ad. & Ellis 61, upon elaborate consideration, it is fully determined that it is not important whether the alteration of the contract is in a particular which was originally required by the statute to be in writing, or not. If any alteration is made in the contract so that part of it has to be proved by oral evidence, it ceases to be a contract in writing, and is thus exposed to all the evils which the statute was intended to remedy. And in this case, the alteration was in the very particular offered to be shown in the present action.
¶8And it seems to us that a moment’s reflection must satisfy every one that if the action is only to be maintained upon the oral evidence offered at the trial, the action is not maintained upon any contract in writing.
¶9It does not seem to have been claimed in the county court that the plaintiffs could get along with their case without showing a survey of the land, the offer to accept a deed being made probably upon that basis, the full six hundred dollars not having been tendered perhaps, but a less sum. The defendant, then, did show a defence under the written contract, as no survey was made in accordance with its terms. And he may stand upon that defence, so far as his liability to an action is concerned.
¶10If a waiver of performance of a contract in writing is attempted *620to be shown by oral evidence, as matter of defence, it is perfectly competent, even in cases where the contract is under seal, as was long since held in this state; Lawrence v. Dole, 11 Vt. 549.
¶11And the same rule is now well established in regard to the defence of actions upon contracts within the statute of frauds, although it was for a long time questioned by the courts, whether such a contract could be waived by an unwritten contract.
¶12Judgment affirmed.