Specific Performance—Contract for Sale and Exchange of Lands— Modifications—Substituted Oral Agreement—Novation—Part Performance.—In an action for specific performance of a contract for the sale and exchange of lands, though an unexecuted oral modification of the original written • contract cannot be enforced; yet, where it appears that the oral agreement was substituted by novation in the place and stead of a canceled written contract, and that it provided different terms, and was fully performed on plaintiff’s part, by conveyance of the lands belonging to him, he can enforce the substituted oral agreement according to its terms.

Id.—Construction of Code — Substituted Oral Agreement not a Modification.—An oral agreement substituted by novation for a former written contract, is not an oral modification of the written contract within the meaning of section 1698 -of the Civil Code, provided the substituted oral agreement is valid and enforceable.

Id.—Statement of Fraud—Part Performance—Acceptance of Conveyances from Plaintiffs by Defendants—Estoppel.—Where the only question is as to the validity of the substituted oral agreement under the statute of frauds, and it appears that the conveyance made by the plaintiffs to defendants was accepted under the new contract, notwithstanding the fact that it was agreed to be made under the former written contract, the defendants are estopped from claiming that such conveyance was not made in part performance of the terms of the substituted oral contract, and that the new contract was void under the statute of frauds.

Id.—Equitable Basis of Part Performance—Prior Written Obligation.—The rule as to part performance of an oral contract for sale or exchange of lands, is based entirely on equitable considerations; and there is no hard and fast rule under which the existence of a prior written obligation bars all inquiry on the subject. It is sufficient that, under the circumstances of the particular case, the act of part performance is referable to the oral contract.

Id.—Oral Contract to Exchange Lands—Part Performance by Plaintiffs—Legal Defense—Bulb in Equity.—Where an oral contract for the exchange of lands has been performed by the plaintiff only, though the defendants would have a legal defense to an action "against them on the contract, yet the rule in equity is that where there is an oral agreement by the terms of which each party is to convey lands to the other, a conveyance by one party on the faith of the agreement constitutes such part performance as will for the purpose of an action for specific performance take the whole case out of the operation of the statutes of fraud.

Id.—Consideration of Oral Contract—Settlement of Disputes.—A sufficient consideration for the oral contract appeared from evidence sustaining the finding of the court that it was based upon the existence and settlement of disputes between the parties.

Id.—Evidence—Want of Consideration for Written Contracts— Support of Pleading.—Where the defendants in their cross-complaint relied upon the previous written contracts, the plaintiffs in support of their answer to the cross-complaint, were properly allowed to introduce evidence as to a want of consideration therefor.

Id.—Oral Evidence to Explain Ambiguity.—Oral evidence was admissible to show all the circumstances surrounding the parties at the time of the execution of a written contract, by way of explaining ambiguous clauses therein.

Id.—Evidence—Substituted Oral Agreement.—Evidence was admissible to show that the oral agreement relied upon by plaintiffs was substituted for the prior written contract to settle disputes arising thereunder.

Id.—Part Performance a Question of Fact—Province of Trial. Court—Support of Findings.—The question whether there has been a part performance of an oral contract on the part of the plaintiff, is one of fact to be determined by the trial court; and the question as to the credibility of witnesses, in case of conflicting evidence, is within the exclusive province of the trial court, and its findings must be deemed in such ease supported by the evidence and will not be disturbed upon appeal.

Id.—Finding against Evidence—Amount of Incidental Expense— Avoidance of New Trial—Consent to Modification of Judgment. —Where it appears that a finding as to the amount of incidental expense allowed by the court is not sustained by the evidence, and to avoid a new trial on that particular question, the respondents’’ offer to remit the whole amount allowed from the judgment, the judgment will be modified in that respect, and the order denying a new trial will be affirmed, and the judgment as modified affirmed, at appellants’ costs.