Counsel have discussed the question whether the firm of John R. Price & Co. was dissolved, and if so, its effect on the rights of the plaintiff’. In the view we take of the case this is immaterial. It will, therefore, be conceded no such dissolution took place.
1.contract : speelal verdl0t‘ It is conceded, as we understand, by counsel, if the action was brought and the recovery had on the written contract it is not barred. Counsel for the appellants insist the recovery was obtained on and because of the parol contract pleaded, and therefore, the bar of the statute is complete. Counsel for appellee do not deny the legal proposition claimed by the appellants, but the fact. They insist the action was brought and recovery had upon the written contract, and what appellees designate an oral contract was nothing more or less than a waiver of a strict performance of the wrhten contract, and an acceptance by the appellees of another or different performance.
The interrogatories propounded to and special findings of the jury are as follows.
I. Where were the ties in issue in this action actually delivered by the plaintiff?
Ans. On the Tipton Branch of the Chicago and North Western Railroad.
2. Was there a contract between the plaintiff and Wm. Phinney, that the said ties were to be delivered on the Tipton Branch of the Chicago and Northwestern Railroad, instead of the point designated in the written contract?
Ans. There was.
3. Was said contract by parol or in writing?
Ans. By parol.
*1544. What was said contract and what were its terms?
Ans. Contract was that the ties were to be delivered on the Tipton Branch of the C. & N. W. Railroad Co., and that the defendant should haul enough to make up extra distance.
12. Was it agreed by parol between the plaintiff and said Phinney, that the said ties should not be delivered at the point designated in the original contract, but that instead they should be delivered on the Tipton Branch of the Chicago & Northwestern Railroad?
Ans. Yes.
It seems to us the special findings quite satisfactorily show there was a parol contract entered into between Phinney and the plaintiff whereby the written contract was materially changed, substantially abandoned, and a new oral contract entered into with the terms and conditions of which the plaintiff complied. There is no pretence the written contract was performed by either party. The special findings do not support the claim of the plaintiff that there was a waiver of performance of written contract. Clearly the special findings do not so state in terms. Besides they negative such thought. Waiver of performance is quite different from a new contract containing other and different stipulations of an affirmative character. Now the jury have without doubt found there was a parol contract entered into by the parties. They have not found there was a waiver of the written contract, unless such inference is to be drawn because the former took the place of the latter. If this be conceded then as the written contract was not in force, the recovery, if had at all, must be. based on the oral contract.
The written contract bound the plaintiff to deliver the ties by the first day of March, 1872. The amended petition states they were not delivered until the su mmer and fall of 1872. The special findings taken in connection with what has been just stated, show that by the terms of the oral contract the time and place of delivery were changed, and also as we think the com*155pensation or price to be paid- the plaintiff. For while the price stipulated in the written contract was not expressly changed, .yet because of the increased distance of delivery agreed upon, the plaintiff was required to deliver at such place only a portion instead of all the ties. This necessarily increased or diminished what the plaintiff had bound himself to do and in like manner affected the compensation provided in the written contract.
Under the special findings of the jury we are of the opinion the recovery was had on the oral contract, and thereunder the 2. practice, jury must have found the general verdict. This being so no judgment should have been rendered on the latter, but the motion of defendants for judgment in their favor on the special findings should have been sustained. McGregor and Sioux City R. R. v. Foley, 38 Iowa, 588.
Reversed.