Maxwell v. Graves

Rothrock, J.

I. It is argued at some length that there was a consideration for the parol modification of the contract at the time it was made, and the petition alleges that this consideration was that expressed in the original written agreement, and the mutual benefits to be derived by each of the parties by the exchange. We do not feel called upon to determine whether this was a consideration for the modification of the contract or not.

It is averred in the petition, and contended in argument, that the plaintiff delivered the ten barren cows to the defendant in pursuance of the parol change in the contract. If they were delivered, they must have been received by the defendant, and, if received, the plaintiff thereby parted with them. He had been at the expense of keeping them through the winter, and taking them to the place of making the exchange. It is very clear that, even if there was no original consideration for tbe parol modification of tbe contract, tbe defendant cannot raise tbat question after tbe plaintiff bas performed bis part of it, and tbe defendant bas accepted sucb performance. Something is said in argument by counsel for appellee about tbe original petition, and an amendment thereto, and parts of these pleadings are set forth in the argument. They cannot be allowed consideration in this appeal, because tbe pleading which was attacked by tbe motion appears to be “ an amended and substituted petition.”

II. Tbe motion also made tbe question tbat tbe petition contained two alleged causes of action, and asked tbat plaintiff be required to separate and divide tbe same. No ruling was made upon this part of tbe motion. We are requested by counsel for appellee to determine that question. As it was not passed upon by tbe court below, we cannot entertain it. We think tbe motion to strike was improperly sustained.

Reversed.