REUBEN H. THURSTON AND THOMAS HAYS v. WILLIAM LUDWIG.

A verbal agreement, to be effectual as a waiver, variation, or change in the stipulations of a prior written contract between the parties, must rest upon some new and distinct legal consideration, or must have been so far executed or acted upon by the parties that a refusal to carry it out would operate as a fraud upon one of the parties.

PETITION in error to reverse the judgment of the district court of Crawford county.

The original action was assumpsit, brought by the plaintiffs in error against the defendant in error, in the court of common pleas of Crawford county, March 17, 1852. The plaintiffs declared on a written contract as follows, viz:

Thurston & Hays v. Ludwig.

"This is to certify that Wm. Ludwig agrees to deliver to Thurston & Hays from 300 to 500 good merchantable stock hogs, none to 2] weigh less than 70 lbs., to be delivered in *Delaware, Ohio, from 1st to 5th of March next, for which Thurston & Hays agree to give $3.10 per hundred gross weight on delivery.

"WM. LUDWIG,
"THURSTON & HAYS.

"BUCYRUS, January 13, 1852."

The defendant plead the general issue, with a notice, that, on the trial, he would give in evidence and insist in bar of the action, that after the execution of the contract declared on, and on the same day, to wit, on the 13th day of January, 1852, said contract was varied by a verbal agreement between the plaintiffs and the defendant, whereby the plaintiffs for a good and sufficient consideration, promised to make the defendant an advancement of money on said written contract, before the 5th day of March, 1852, to wit, on the 1st day of February, of that year; and that in default of such advancement of money, the defendant was discharged from all liability on said written contract; and that the plaintiffs neglected and refused to make such advancement of money to the defendant; whereby the defendant has become discharged from all liability to the plaintiffs on said written contract.

After a trial in the common pleas, the cause was appealed to the district court. And at the August term of the district court, 1852, the intervention of a jury having been waived, and the cause submitted to the court, the plaintiffs, to maintain the issue on their part, gave in evidence the written contract declared on, and also evidence proving the failure of the defendant to deliver the hogs; that, at the time specified for the delivery, stock hogs, such as the contract called for, were worth at Delaware from $3.70 to $3.75 per hundred weight gross. And it appeared in the evidence, that after the written contract had been executed between the parties on the 13th January, 1852, the defendant, Ludwig, told the plaintiff, Thurston, 3] that he would *expect an advancement of money on the contract before the delivery of the hogs, insisting that it was customary among stock dealers to do so. To this Thurston replied, that it was not his custom, and that he did not expect to make any such an advance. Ludwig, however, insisted on the advance, and Thurston finally said that he would either go himself or send to Bucyrus, sometime about the 1st of February, and would then advance to