The opinion of the court was delivered May 30, 1855, by
Knox, J.— On the 29th day of January, A. d. 1846, an article of agreement, under seal, was made, by which the defendant, Rader, agreed, by the 1st of October next, to build, set up, and finish for the plaintiff, Lawall, a dwelling house, of the dimensions and in .the manner mentioned in the contract; for which the plaintiff was to pay $890. In this contract, nothing is said as to the kind of roof to be put upon the building; but after the work was commenced, and partly done, viz: on the 21st June, 1846, by a superadded agreement, not under seal, the defendant stipulated to put a slate roof on the house, for which the plaintiff agreed to pay the additional sum of $35.
The plaintiff, alleging that the body of the house was defectively built, brought an action on the case, for damages. The Common Pleas was of opinion that the action should have been covenant, and so directed the jury.
The question presented is this: Did the subsequent agreement by parol so affect the original, as to destroy its character-as a specialty ?
Where a contract under seal is altered by parol, it all becomes parol. Vicary v. Moore, 2 Watts, 451. But a mere additional parol agreement, not changing or modifying the one under seal; will not have this effect. Ellmaker v. The Franklin Fire Insurance Company, 6 W. & S. 439. Nor will a stipulation by parol, releasing or waiving performance of part of the covenant. M'Combs v. M'Kennan, 2 W. & S. 217. The test of collision,. *430said Chief Justice Gibson, in Ellmaker v. The Insurance Company, was the capacity of the two contracts to be executed together. Wh ere that can be~done, the one is not substituted for the other; and where there is in fact, substitution, it operates as abandonment — the specialty being relinquished, except as matter of reference for the terms of the parol contract, which has supplanted it. Let us apply this test to the case under consideration. By the agreement under seal, the defendant binds himself to build for the plaintiff a house, in a certain specified manner. Nothing is expressly said as to the kind of roof to be put on the house; but as the' house was to be finished, it follows, as a matter of course, that it was to have a roof. It was all to be done in a workmanlike manner; and in the absence of an express stipulation, the question presents itself, what kind of a roof was in contemplation of the parties? Were it important to know the- precise kind of roof which the original contract required, as this would depend upon the custom of the trade in the locality where the house was to be erected, it should have been submitted, as a question of fact, to the jury. But the parties have furnished us with conclusive evidence' that a slate roof was not originally contemplated; for when this is agreed upon, an additional price is given for its consideration.
We have then, in the first place, an agreement under seal, to build and finish a house with a roof, but not a slate roof. After-wards the contract is altered, so as to require for its completion a slate roof; and the price or sum to be paid is changed from $890 to $925. After the alteration, the contract is still an' entirety. Until the slate roof was done, the house was not finished. The contract under seal could not be executed without complete performance of the parol agreement, and under the authority of the cases above cited, the sealed contract was abandoned, except as matter of reference, and that by parol substituted in its place..
It is. argued that the slate roof was a mere addition to, and not an alteration of the first contract. But this can only be so, upon the assumption that the house could be finished without a roof of any kind; the absurdity of which is entirely apparent. The roof was as necessary to the house as the foundation; the difference being, that without the one the structure could not be commenced, and without the other it could not be finished. If the alteration had been an immaterial one, the remedy would have been upon the sealed instrument; but as there was a material variation, assumpsit was the proper action.
Judgment reversed and venire de novo awarded.