no dispute now, as to the meaning of any provision of the contract. While necessary elements of a writing required by the statute of frauds may not be supplied by parol, Ochs v. Weil, 79 U.S.App.D.C. 84, 142 F.2d 758, ambiguities in the terms may be resolved by other evidence, Barry v. Coombe, 1 Pet. 640, 26 U.S. 640, 7 L.Ed 295.
Execution of a formal contract, as contemplated by the memorandum, was not necessary to effect a valid contract between the parties, as there was a full and definite agreement as to all the essentials which the parties intended to be binding. 1 Williston on Contracts, Rev.Ed., § 28.
The defendant further contends that the terms of the written contract of May 31, 1950, could not be orally extended, for to do so would render the whole contract parol and in violation of the statute of frauds. I recognize that there is a division of authority on the question whether or not the time for performance of a written contract within the statute of frauds may be extended by oral agreement. That this split of opinion existed even in the English courts is shown by the discussion in Cummings v. Arnold, 3 Metc., Mass., 486, 37 Am.Dec. 155. No prior decision on the point in this jurisdiction has been brought to my attention. However, there are decisions of other federal courts holding such extensions valid. Hayes Mfg. Corporation v. McCauley, 6 Cir., 140 F.2d 187; Stamey v. Hemple, 9 Cir., 173 F. 61. In my view, the better reasoned cases hold that where time is not of the written contract within the statute of frauds, strict compliance with a covenant as to time of performance may be waived, prior to breach, by oral agreement of the parties without affecting the other provisions of the written contract, and that the mutual promises of the parties are sufficient consideration for such oral agreement. This conclusion was reached in Lewis Bros. v. Pendleton, Tex. Civ. App., 227 S.W. 502, a case involving facts very similar to those in the case at bar.
Although time of performance was specifically provided in the written memorandum of May 31, 1950, in view of the mutual agreement between the parties on or before June 30, 1950, to waive strict compliance and to extend the time for performance to July 6, as stipulated at the trial, and as further evidenced by the conduct of the parties after the thirty-day settlement period had expired, I find that time was not of the essence of the contract.
I therefore hold that the contract between the parties was in effect when the defendant repudiated it on July 5.
The defendant raises the further point that there was no valid consent to the assignment of the lease because there was no compliance with Section 21-211 of the District of Columbia Code, which provides for court approval of any 'demise' of an infant's real estate. This section is inapplicable to the required consent, since assignment of an existing lease does not constitute a 'demise.' Johnson v. Kurn, 8 Cir., 95 F.2d 629, 632. However, even if the section were applicable, the defendant, having repudiated the contract before the settlement date, cannot now question the plaintiff's ability to perform his obligation. Malloy v. Kellogg, 51 App.D.C. 302, 304, 278 F. 1015.
For the foregoing reasons, I find that the defendant breached the contract and that the plaintiff is entitled to damages resulting to him from such breach, in the amount of the difference between the contract price and the market value of the business as of the time for performance of the contract, United States v. Burton Coal Co., 273 U.S. 37, 47 S. Ct. 351, 71 L. Ed. 670, less the $ 500 deposit paid him by the defendant.
Since there is no evidence of the market value of the business other than the resale price realized by the plaintiff, as to the reasonableness of which there has been no challenge, I find the plaintiff is entitled to judgment in the amount of $ 2,500 with interest from July 6, 1950.
The cross-complaint of the defendant must necessarily be dismissed.
Counsel will present appropriate findings of fact, conclusions of law, and judgement