majority">Kellogg, J.

The plaintiff’s evidence on the trial of this case tended to show that on the 25th November, 1858, or about that time, he made a contract with the defendant for the purchase of his lot of wool,j estimated to be about twenty-five hundred pounds, at the price of forty-six cents per pound, and that, by the contract, the wool was to be paid for, with interest, and taken away by the plaintiff, by the 15th December following ; that, at the time of making the contract, the plaintiff paid fifty dollars to the defendant as earnest money or in part payment for the wool, and that, on the 11th December, 1858, it was agreed between the plaintiff and the defendant that the time for the payment of the balance of the purchase money,’ and for the delivery of the wool, should be extended from the 15th December to the 1st day of February following. Neither the original contract nor the agreement for its extension were in writing. The only question made upon this part of the case bythe defendant, is that this enlargement of the time for the performance of the original contract constituted a new contract, and that, as it was not in writing and no additional earnest money was paid, it falls within the statute of frauds. Where a particular time is appointed by the terms of the contract of sale for the delivery of and payment for property of a fluctuating value, and the payment and delivery are to be concui-rent acts, the time so appointed is of the essence of the contract. The original contract for the purchase and delivery of the wool was taken out of the statute of frauds, when it was made, by the payment and acceptance of the eai-nest money. While it remained executory, and in unquestioned force, it was varied by the agreement of the parties only in respect to the time for its performance, An alteration by parol of the terms pf a written pontrapt under the provisions of the *131statute of frauds cannot be binding, for the reason that the alteration creates a new contract which it would be necessary to prove partly by parol evidence, and this principle applies as well to contracts for the sale of goods, wares, and merchandize as for the sale of lands. Stead v. Dawber, 10 Ad. & El. 57, (37 E. C. L. 40.) Marshall v. Lynn, 6 Mees. & Welsb. 109. But, where a contract for the sale of goods is taken out of the statute of frauds by the payment of earnest money, and, as in this case, is not reduced to writing, it does not contravene the spirit or policy of the statute to allow its. terms to be varied by parol any more than it would to allow the terms of the original contract to be thus proved. In such a case, the original contract is treated as still remaining, and no new consideration is requisite for an alteration of its terms in respect to the time for its performance, — “ the consideration for the old agreement being imported into the new agreement which is substituted for it,”— as was said by Lord Denman, C. J., in Stead v. Dawber, ubi supra. We think, therefore, that it was competent for the parties to this contract to extend or vary the time for its performance, by a subsequent parol agreement, at any time while it remained executory, without any new consideration,

The question then arises, whether the plaintiff’s evidence tended to show such h waiver or extensión by the defendant of the time for the performance of this contract as bound him to accept the plaintiff’s offer of performance made on.the 2d day of February, 1859. It is claimed on the part of the plaintiff that the evidence in respect to the interview between himself and the defendant on the 27th January, 1859, tended to show such a modification of the terms of the original contract. At the time of this interview, the contract as limited to the 1st February was in admitted force ; and the plaintiff’s testimony tended to show that he, with one Bottomly, a wool dealer, went to the defendant’s house in Clarendon, and examined the wool, and that the defendant assisted in the examination, and then knew that the plaintiff was negotiating with Bottomly, for the purpose of selling to him this lot and other lots of wool; and the proof is, that the plaintiff told the defendant, on that occasion, that he should probably sell the wool to Bottomly, and that he would come and *132take and pay for the wool as soon as Bottomly could go to Leicester, Massachusetts, where he resided, and get back with the money and sacks for sacking the wool, and that he would inform the defendant of the sale which he expected to make to Bottomly, to which the defendant replied “ very well.” This was a proposition by the plaintiff to take and pay for the wool as soon as Bottomly could go to Leicester, and return with the money to pay for it and the sacks for sacking it, in case the plaintiff should sell the wool to him as the result of the pending negotiation with him, and to give.the defendant notice of such sale to Bottomly if it should be made; and the proposition implied that Bottomly should use reasonable diligence in making the journey to Leicester, and on his return. -If, in the exercise of such diligence, Bottomly could have performed the journey before the 1st February, this proposition would not have required any extension of the time for the performance of the contract, but, if he could not have made the journey by the use of such diligence before that time, then the proposition necessarily implied an extension of the contract to such time beyond that day as would allow to Bottomly an opportunity by the use of reasonable diligence to make the journey. In this light it was a proposition to waive or extend the time for the performance of the contract, and to treat and act upon the contract as a continuing contract after the appointed period ; and the testimony of Joseph Packer, Jr., tended to show that the defendant so understood the proposition. We are of opinion that this testimony was proper for the consideration of the jury, and should have been submitted to them as tending to show such an extension of.the contract beyond the appointed period by the consent'of the defendant, and, in its connection with the other evidence in the case in respect to the plaintiff’s performance of the terms of the propo-* sition on his part, as tending to support his action. The question whether Bottomly did use reasonable diligence in making his journey, and returning, depended upon the facilities and actual hazards and casualties connected with the usual course of travel on the route over which it would be necessary for him to pass, as existing at that time ; and the testimony which was offered on the part of the plaintiff to show that the railways and *133highways on the route of travel, between the defendant’s residence in Clarendon and the residence of Bottomly in Leicester, were obstructed and blocked up with snow drifts was proper to be taken into consideration in determining this question, and the question itself, on the testimony offered, was one of fact which should have been submitted to the jury.

The plaintiff offered to prove on the trial that the defendant sold his wool to one Langdon on the 1st day of Februarg._or. before the time for the performance of the contract between the plaintiff and defendant had expirecC Understanding this as an offer to prove such a sale of the wool by the defendant as passed, the property in it from him to Langdon, so that the defendant thereby disabled himself from performing his contract with the plaintiff, we regard this evidence as clearly admissible. A sale by the defendant to a third party before the time for the performance of his contract with the plaintiff had expired, was a breach of that contract, which, whether it was known to the plaintiff or not, excused the plaintiff from any duty to tender a performance of it on his part, and it would entitle him to recover from the defendant, under the money counts, the money which he had paid under the contract. And if, after such sale by the defendant to a third person, the plaintiff had, before the expiration of the time limited for the performance of his contract, tendered a performance of it on - his part 'to the defendant, he could have maintained an action against the defendant for the \ recovery of proper damages for such breach of contract. Bowdell v. Parsons, 10 East. 369. Newcomb v. Brackett, 16 Mass. 161. Addison on Contracts, 236.

We have not considered the questions of variance between the plaintiff’s proof and his declaration which were suggested on the argument; as, in the view which we take of the evidence, it tended to support the money counts in the declaration, even if it was applicable to no other counts. As the result of our conclusions, the judgment of the county court for the defendant is reversed, and the cause is remanded to that court for a new trial.

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