It is well settled in this State, whatever the rule may be elsewhere, that the time of performance of a contract under seal maybe extended by parol. Fleming v. Gilbert, 3 Johns. 528; Keating v. Price, 1 Johns. Cas. 22; Esmond v. Van Benschoten, 12 Barb. 366; Clark v. Dales, 20 id. 42; Stone v. Sprague, id. 509; Flynn v. McKeon, 6 Duer, 203; Meehan v. Williams, 2 Daly, 367; Newton v. Wales, 3 Robt. 453.
The court in Clark v. Dales, supra, adopts the ruling of the supreme court of Pennsylvania, in Bitzer v. Hahn, 14 Serg. & R. 241, that a new consideration is not necessary to give validity to an *112agreement to extend the time of performance; the waiver is enough for this purpose.
It is said by the learned judge in his opinion in the case cited that the effect of an agreement to enlarge the time is to substitute or adopt the extended time for the time specified in the original contract. It then stands as a new agreement whenever the mutual promises furnish a good consideration.
If a consideration was essential to the agreement to extend the time of payment, the assumption of the mortgage debt by the defendant Saxton is sufficient to bind the plaintiff, and the extension is ample to bind the defendants. It is not intimated in any of the cases that hold that time of performance of a sealed or written contract may be extended by parol, that such extension is in conflict with the general rule that a written contract cannot be varied or modified by parol.
We must hold, then, that the time of payment was extended by the verbal contract, and that there was no default in the payment of the principal of the indebtedness.
Interest was unpaid at the commencement of the action, for which there might have been a foreclosure, but not for the whole debt. The payment of interest is a condition which the debtor must perform, but its non-payment is not such a breach of the condition as will make the whole principal due. But if the whole principal became due upon default to pay the interest, this case was not tried or decided upon that theory; The defendant was precluded from having his defense considered by the referee, and a new trial becomes indispensable.
The judgment must be reversed and a new trial granted, costs to abide event.
Judgment reversed and new trial granted.