Stamey

(after stating the facts as above). The complaint is said to be demurrable on two distinct grounds: First, that the oral agreement to extend the life of the option is void as within the statute of frauds, so that there was no consideration for the defendant’s promise to do the assessment work; and, second, that, conceding the contract to be valid, the measure of the plaintiff’s damages was not the value of the mining claims which he lost.

If an agreement required to be in writing under-the statute of frauds is modified by a subsequent oral agreement, which does not in itself constitute a contract within the statute of frauds, the modification is valid and binding upon the parties; and it is generally held that, if the subsequent oral agreement is merely for a change in the time of performance of a written contract, it is valid. 20 Cyc. 287; Ward v. Matthews, 73 Cal. 13 , 14 P. 604 ; Scheerschmidt v. Smith, 74 Minn. 224 , 77 N.W. 34 ; Cummings v. Arnold, 3 Metc.(Mass.) 486, 37 Am.Dec. 155; Stearns v. Hall, 9 Cush.(Mass.) 31 ; Whittier v. Dana, 10 Allen (Mass.) 326; Hurlburt v. Fitzpatrick, 176 Mass. 287 , 57 N.E. 464 ; Kissack v. Bourke, 224 Ill. 352 , 79 N.E. 619 . Upon the…