Albert Mackie & Co. v. S. S. Dale & Sons

Citations

• 122 Miss. 430
• 84 So. 453

Syllabus

<p>1. Evidence. In action for breach of written contract a parol waiver of a stipulation may be pleaded and proved.</p> <p>The defendant in an action for damages for the alleged breach of a written contract may plead and prove as a defense a parol agreement to waive a particular provision of the contract and a performance or offer to perform in accordance with the parol understanding.</p> <p>2. Evidence. Parol evidence admissible to prove parties’ assent to a substituted mode of perform/ance.</p> <p>In a suit upon a written contract, it is competent for the defendant to introduce parol evidence to prove, not a substituted contract, but the assent of the parties to a substituted mode of performance of the original contract when performance is completed.</p> <p>3. Fbauds, Statute oe. Strict performance of loritten contract may be waived by a parol understanding.</p> <p>Strict performance of a written contract within the statute of frauds may be waived by a parol understanding or by words and acts inconsistent with an intention to' require performance.</p> <p>Ethridge, J., dissenting.</p>