Bevans

This is an appeal from a judgment in favor of plaintiff against defendant Huntington. The parties entered into a written contract containing the following terms:

After a certain quantity of work had been done under the subcontract, hardpan was encountered and Gunter informed Huntington that “it would be impossible ... to continue with the contract on account of this hard ground,” and Huntington replied: “I don’t expect you to. ... I do want you to help me finish this main canal and I will pay you wages for it.” Gunter agreed to the proposition and so informed Bevans. The remainder of the work was performed under the oral contract thus entered into, and the suit is based thereon.

Appellant contends that the new contract was invalid as an attempted oral modification of a written contract without consideration. The written contract was not for the construction of any definite section of the canal or for any given quantity of work or for work to be continued for any given time, but only to do excavation work indefinitely at a given price per yard. Either party had the right to terminate the contract at any time. When Gunter informed Huntington that the former would no longer…