The McDonald Manufacturing Co. vs. Moran, imp. certain uses and purposes, and which proved on trial to be absolutely worthless for such uses and purposes, and which was delivered up and received back as being so worthless, and replaced by another like machine on the same representations and warranty, and which likewise on trial proved to be utterly worthless; that the notes were never delivered, but placed in escrow to await the trial of said machine, and not to be delivered unless said machine proved to be as represented and warranted; that the plaintiff took said notes with notice of such warranty and its breach, and after the maturity of said notes; that the principal maker had no resources or means with which to pay the notes except by the use of said machine, and is utterly worthless and insolvent; and that it is necessary for his protection as such accommodation indorser, to have the benefit of the counterclaim growing out of the breach of said warranty and failure to perform such contract, and he can in no wise reimburse himself out of any property of the principal maker, if compelled to pay said notes; and he prays that he be subrogated to the same rights, defenses and equities that might or could be set up by said principal maker. The evidence on the part of the plaintiff showed that the first note was taken by the plaintiff after its maturity. The principal inaker of the notes was made a party, and suffered default. The circuit court sustained the objection of the plaintiff to the admission of any evidence under the answer, and directed a verdict for the plaintiff. Whether the facts stated showed a non-delivery of the note or not, we are quite clear that the second defense brought the case almost literally, and certainly in legal effect, within the case of Iiner v. Newton, 30 Wis., 640, which makes such a defense available to the indorser, and the evidence should have been received. By the Court. The judgment of the circuit court is reversed, and the cause remanded for a new trial therein. Brown vs. Everhard. BROWN VS. EVERHARD. April 1-April 19, 1881. Change of written contract by subsequent oral agreement. A written contract, at least if of such a character that it is not required by the statute of frauds to be in writing, may be subsequently changed by oral agreement; and such subsequent agreement need not rest upon any new consideration. APPEAL from the County Court of Fond du Lac County. Action upon the following contract in writing: "The Biographical Dictionary and Portrait Gallery of Eminent and Self-made Men of the State of Wisconsin; to be completed in one elegant quarto volume, bound in full morocco; printed on fine toned paper; of about 600 pages, and illustrated with steel engravings. "THE AMERICAN BIOGRAPHICAL PUBLISHING CO., CHICAGO, CINCINNATI AND NEW YORK. "GENTLEMEN: I agree to take one copy of the above-named work, and to pay you $25 per copy on delivery of the same to my address. A. EVERHARD. "Address, Ripon, Wisconsin. "Date October 26, 1875." The instrument is indorsed as follows: "If the sketch of Dr. Everhard should not be published, this order is void. Pay to order of H. M. BROWN. American Biographical Publishing Co., per H. M. BROWN, Secretary and Treasurer Company." The defendant answered a general denial, and a former suit in bar. The last defense is not considered. The cause having been tried in the county court without a jury, the court found as facts, that the contract was originally entered into between the defendant and such publishing company as above stated, and that the company sold and transferred the same to the plaintiff before the action was commenced. The Brown vs. Everhard. court also found as follows: "That subsequently to the making of said contract the agent of said company, on the same day of the making thereof for said company, made a further agreement with the defendant that the order or contract [above set forth] should not be considered as an order for the book mentioned therein, and thereupon made a further agreement and contract that the said company and firm was to send the defendant a sketch of defendant, which if he approved and ordered published in said book, he was also to give said company an order for the book; that such sketch was by said firm sent to defendant with a request to order the book, but the defendant did not approve the sketch, or order it published in said book, or give an order for the same." As conclusions of law the court held that the plaintiff could not recover, and that defendant was entitled to judgment for his costs. Judgment having been entered accordingly, the plaintiff appealed therefrom. For the appellant there was a brief by S. J. Morse, his attorney, with Eli & C. E. Hooker, of counsel, and oral argument by Mr. Morse. The cause was submitted for the respondent on the brief of J. J. Foote. LYON, J. The proof is that the indorsement on the order for the book, "If the sketch of Dr. Everhard should not be published, this order is void," was written a few minutes after the defendant signed the order, and it is quite apparent that it was so written before or simultaneously with the delivery of the order to the agent of the publishing company. The order and indorsement must therefore be regarded as containing the terms of the original contract, and all of them. If that contract remains in force, there seems to be no doubt of the right of the plaintiff to recover; for it was proved that the book containing a sketch of the defendant was published and duly tendered to him, and that he refused to accept it or pay for it. Brown vs. Everhard. The evidence is sufficient to support the findings quoted in the statement of the case, to the effect that the contract was modified by a subsequent agreement entered into by the defendant and such agent, and that the defendant did not approve of the sketch inserted in the book. That agreement was not reduced to writing. If such subsequent agreement was binding upon. the publishing company if it worked a modification of the original written contract, the plaintiff was not entitled to recover. The case turns, therefore, upon the question of the validity of the new agreement. We regard the rule as well established, that the terms and conditions of a written agreement, not required by the statute of frauds to be in writing, may subsequently be varied or qualified by the parties by a new agreement not reduced to writing. The rule is thus stated by Lord DENMAN, in Goss v. Lord Nugent, 5 Barn. & Ad., 58: "After the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve or annul the former agreements, or in any manner to add to or subtract from, or vary or qualify, the terms of it, and thus to make a new contract, which is to be proved, partly by the written agreement and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement." Page 65. What the rule is in case the original agreement is required by the statute of frauds to be in writing, we need not determine, for this is not such an agreement. Obviously the above rule is not in conflict with that other rule, asserted in numerous cases in this court, that proof of an antecedent or contemporaneous verbal agreement between the parties cannot be received to alter or control their written agreement. See Hubbard v. Marshall, 50 Wis., 322, and the cases there cited. On the subject of consideration, it is sufficient to say, in the language of Lord DENMAN in Stead v. Dawber, 10 Ad. & El., 57, that "the same consideration which existed for the old agreement, Birdsall vs. Birdsall. is imported into the new agreement which is substituted for it." Page 66. We conclude that the new agreement of the parties, as found by the court, is a valid contract, and modifies the original agreement to the extent that the defendant was not bound to receive and pay for the book unless it contained a sketch approved by him. Because the sketch of him, published therein, was not approved by the defendant, he was justified in refusing to receive the book, and the plaintiff cannot recover. By the Court.-Judgment affirmed. BIRDSALL VS. BIRDSALL. April 1-April 19, 1881. PLEADING. (1) Demurrer to one count, in civil action. (2) Complaint construed: Case taken out of Statute of Frauds. 1. On demurrer to one of several counts of the complaint in a civil action, as not stating a cause of action, the court cannot look into the others to see whether all the counts together state only "one indivisible cause of action." 2. The complaint alleges that while plaintiff and his wife were engaged in a profitable business in another state, worth a specified sum per annum, defendant engaged plaintiff and his family to come to the city of Fond du Lac in this state, and promised to employ them there in a like business, and agreed that plaintiff should not be at any pecuniary loss by reason of such change; that in pursuance of such agreement plaintiff sold his property and business at a great sacrifice, and came to Fond du Lac; and that defendant refused to perform the agreement on his part, through no fault of plaintiff or his wife, to plaintiff's damage, etc. Held, (1) That the contract was not within the statute of frauds, as it provided for immediate performance, and there had been part performance and pecuniary loss thereby, and an offer and readiness to perform by plaintiff. (2) That the complaint states a cause of action in favor of the plaintiff alone (although the court might, on motion, have required it to be made more definite and certain), and to that extent the wife is not a necessary party. |