dissenting.
Because I believe the trial court based its ruling on erroneous legal theories, I respectfully dissent.
I fully agree with the majority that the trial court erred in holding that the lease was void for failing to adequately describe the leased premises. The second reason given by the trial court for its ruling was that “[t]he conditions precedent to the obligation of the Defendant to pay rent to the Plaintiff were not satisfied because the Rental Commencement Date did not occur. Accordingly, no recovery can he had by [Peripety].” The Rental Commencement Date was defined as the earlier of (1) 90 days after turnover of the premises to Ladies Workout Express (LWE) or (2) the date when LWE opened the premises to the public. According to the trial court, because neither of these events occurred before the lease was terminated, defendants’ obligation to pay rent never accrued.
It is apparent that, in ruling for defendants on these grounds, the trial court based its decision on its finding that defendants validly terminated the lease pursuant to the March 9, 1995 memoran*163dum before the occurrence of the Rental Commencement Date, and hence before any sums were due under the lease. On appeal, Peripety contends that the trial court erred in holding that the memorandum authorized termination by the tenant.
As an initial matter, the court’s interpretation of the memorandum as creating an additional condition precedent to defendants’ liability under the lease — in effect giving defendants an option to terminate the lease — appears improper. The lease itself provided that defendants agreed to accept the premises “as is.” Although defendants agreed to perform certain additional construction and Peripety agreed to provide a construction allowance for such work, these construction obligations clearly did not constitute conditions precedent to the parties’ liability under the lease. The mere fact that the March 9 memorandum may have placed an additional condition on the parties’ construction obligations thus does not necessarily indicate that the parties intended to give defendants the unilateral right to terminate the lease if such condition was not met.
In concluding that the memorandum created an additional condition precedent to defendants’ liability under the lease (as opposed simply to their obligation to perform additional construction), the trial court must have relied on parol evidence as to the parties’ intent rather than on the language of the memorandum. However, while “parol evidence is admissible to explain an ambiguity in a written contract, . . . such evidence is inadmissible to add to, take from, or vary the writing itself.” (Emphasis supplied.) Thomas v. American Global Ins. Co., 229 Ga. App. 107, 109 (2) (a) (493 SE2d 12) (1997). Although parol evidence might have been admissible to explain an ambiguity relating to the parties’ construction obligations, the trial court in essence added an additional term to the memorandum by holding that it effectively gave defendants the right to terminate the lease under certain conditions. Furthermore, because the original lease was for a period of more than one year, the lease and any modification thereof were required to be in writing. B-Lee’s Sales Co. v. Shelton, 141 Ga. App. 870-871 (1) (234 SE2d 702) (1977). “[A] contract which the statute of frauds declares must be in writing can not rest partly in writing and partly in parol.” (Punctuation omitted.) Id. at 871.
Moreover, the only parol evidence supporting the trial court’s conclusion as to the parties’ intent came from the testimony of Mullins, defendants’ real estate agent. Although Mullins testified that he was “involved in the negotiations of the banner,” he did not claim to have first-hand knowledge of any agreement that the tenant could terminate the lease if a certain number of reservations were not received. Rather, he testified that
*164my understanding was that Bill Smith met with Donna Woods at the site and they — [hearsay objection raised by Peripety]. Well, what I was going to say is, this was generated from a meeting that I understood took place. If there were more than 300 people that actually reserved memberships with [the] club, then [LWE] would go forward. If there were anything less in a 30 day period, then they would not, and that was the agreement.
(Emphasis supplied.) It thus seems clear that Mullins’ characterization of the alleged agreement is based on nothing more than hearsay. The defendant, Smith, who was the one supposedly at the meeting, did not testify at trial. Accordingly, to the extent the trial court relied on parol evidence to conclude that the parties agreed to an additional condition precedent, it erred in doing so, as neither the original lease nor the March 9 memorandum suggests the existence of such a condition.
In any event, even if the memorandum can be construed as creating an additional condition precedent, no consideration has been shown for such an agreement. “A written contract may be modified by a subsequent agreement, but such must be founded upon new consideration.” Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga. App. 679, 681 (1) (305 SE2d 361) (1983). The trial court did not find that the parties simply mutually agreed to terminate the lease, thereby involving the mutual surrender of rights and obligations by both parties. Rather, it found that the March 9 memorandum imposed an additional condition precedent to defendants’ obligations under the lease — in essence, it found that the memorandum modified the lease to give defendants the unilateral right to terminate if they did not receive sufficient health club reservations. The memorandum imposed no additional obligations on defendants, as Mullins admitted, and gave no additional rights to Peripety. Accordingly, even if the memorandum can be construed in the manner the trial court selected, there is no evidence of any consideration to support the purported modification.
The trial court clearly based its holding that no amounts were due under the lease upon its erroneous conclusion that defendants validly terminated the lease before the Rental Commencement Date occurred. Since the lease was not validly terminated, defendants’ unilateral repudiation of the lease does not relieve them of liability simply because the Rental Commencement Date had not yet occurred. A party to a contract cannot avoid liability by simply repudiating the contract before the time has expired for the other party to perform its obligations. “[W]hen one party to a bilateral contract of mutual dependent promises absolutely refuses to perform and repu*165diates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved from any future performance on his part.” (Punctuation omitted.) Jones v. Solomon, 207 Ga. App. 592, 593-594 (1) (428 SE2d 637) (1993). See also Moore v. Deal, 75 Ga. App. 823, 827 (2) (44 SE2d 571) (1947) (tender of performance unnecessary when under facts alleged it would have been futile). Accordingly, judgment was not required in favor of defendants simply because they unilaterally repudiated the lease before the occurrence of the Rental Commencement Date.
Decided March 19,1999. John B. Degonia, Jr., for appellant. William A. Trotter III, for appellee.Because it is apparent that the trial court’s decision was based on erroneous legal theories, I would reverse the trial court’s judgment and remand the case for further consideration.
I am authorized to state that Presiding Judge McMurray and Judge Andrews join in this dissent.