¶1delivered the opinion of the court.
¶2The court instructed the jury to disregard any and all testimony that had been admitted on the trial in so far as such testimony tended to alter or vary the terms of the written agreement admitted in evidence. Such instruction should not have been given. There was the positive testimony of three witnesses that a subsequent agreement had been made bv which the contract described in the written memorandum was materially changed. The written memorandum was not under seal and could be set aside or changed as the parties saw fit by a subsequent oral arrangement.
¶3Ror should the jury have been instructed that appellee was entitled to interest upon whatever sum might be found due to him under the contract referred to in the written memorandum. The action of appellee was for unliquidated damages occasioned by a failure to convey certain premises to him in accordance with what he claimed was the agreement of appellee, evidenced by the written memorandum by her signed—being that set forth in the statement of facts preceding this opinion, upon which memorandum the action in this case was brought. The damages were unascertained and there could not be an unreasonable and vexatious delay of payment.
¶4The statute of limitations' had not run at the beginning of this suit upon the action of appellee, it being based upon written evidence of contract. The burden of showing that a new arrangement had been made was upon appellant, and the jury might properly have been so instructed.
¶5The judgment of the Circuit Court is reversed and the cause remanded.