The distinction between the obligation of an executory contract under seal, and a liability for damages for a breach of any of its stipulations is so clearly defined, and the authorities so carefully collected in Clough agt. Murray (3 Robt. 7), that it is only necessary to apply the principles of such distinction to the facts of this case.
It is clearly established by these authorities that until a breach, a contract under seal, cannot be discharged or even modified by parol.
By the terms of the contract between the plaintiffs and the defendants’ testator, the defendants had, until the first day of February, 3 867, for performance. There could, therefore, be no breach of the contract until the expiration of that time.
The agreement which it was claimed was an extinguishment discharge or satisfaction of the first contract, was made in November, 1866, and before there has been any failure to perform the first contract. .
The latter, therefore, was still an unexecuted contract upon which no right of action has arisen, for the recovery of damages or otherwise, and could not be discharged or modified by a parol agreement, notwithstanding such parol agreement was fully executed.
r I am of opinion that the evidence of the parol agreement was improperly admitted.
' There must, therefore, be a new trial, with costs to the appellants to a bide the event.
Judgment and order set aside, and new trial ordered accordingly.