The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 299
xx, 1023 p. ; 23 cm.View a full description of this legislative document.
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G. S. JOHNSON CO. V. NEVADA PACKARD MINES CO. 2'9
(272 F.)
man v. Stanhope, 50 Mont. 41, 144 Pac. 1083, L. R. A. 1916C, 443,
445; Beaver v. Continental B. & L. Ass'n, 15 Cal. App. 190, 116 Pac.
1105; Harloe v. Lambie, 132 Cal. 133, 64 Pac. 88.
If the oral agreement of June 21st was insufficient to extend plain-
tiff's time, to eliminate from the option the forfeiture and condition
precedent clauses, or to substitute for such clauses a promise on
defendant's part to deliver the balance of said "400,000 shares at said
stipulated prices on the sole condition that plaintiff keep defendant
throughout said campaign in sufficient funds, estimated at between
$2,000 and $2,300 per month, to keep said development work in prog-
ress," the question next arises whether that result could have been
produced by the alleged waiver and estoppel. The answer is fur-
nished by the Code section above quoted:
"A contract in writing may be altered by a contract in writing, or by an
executed oral agreement, and not olhe it Iuc"
Thus the only two methods by which a contract in writing may be
altered are prescribed, and all others, as by waiver or by estoppel,
are excluded. Platt v. Butcher, 112 Cal. 634, 44 Pac. 1060; Beeson
v. Wright, 159 Cal. 133, 112 Pac. 1091; Benson v. Shotwell, 103
Cal. 163, 37 Pac. 147; Neverm.an v. Bank, 14 Okl. 417, 78 Pac. 382;
13 Corpus Juris, 673-694.
Clearly, the contract of March 17th was not changed or modified,
nor was any new or additional term added thereto, by the alleged
waiver and estoppel. What effect, then, if any was produced by those
circumstances ?
[5] This leads to a consideration of the facts on which plaintiff
relies in support of its plea of waiver and estoppel. It appears from
the complaint that on May 10th plaintiff had taken less than 75 per
cent. of the shares required by the option, but defendant accepted this
as full performance, and importuned plaintiff to persist. June 10th,
when plaintiff should have taken altogether 90,000 shares, and paid
$9,000 therefor, it had bought in all but 63.965 shares, and paid but
$6,396.50 thereof. This performance of June 10th defendant is also
alleged to have accepted as full performance, and importuned plain-
tiff to further persist. Between June 21st and July 13th plaintiff dis-
posed of 11,644 shares, and paid $1,164.40, which defendant received;
but there is no averment that this was accepted as full performance.
July 11th Mark Walser addressed a letter to plaintiff, in which the
hope is expressed that plaintiff will be able to send several thousand
dollars during July; but, stating that the property is too valuable to
risk liens and attachments, safety required the company to shut down
or Reduce the force to the minimum, and that the secretary had
gone to the mines to consult with the superintendent. Throughout
that period defendant repeatedly "expressed to plaintiff its concern on
account of the unforeseen disadvantages under which plaintiff was
laboring in said campaign, and its satisfaction at the results achieved
by plaintiff, and repeatedly importuned plaintiff to persist in said
campaign notivithstandmg said disadvantages."
Moved by these importunities and expressions of satisfaction, plain-
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38843/m1/321/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.