JUDGES: Myrick, J. Morrison, C. J., and Thornton, J., concurred.
OPINION
MYRICK, Judge
Mrs. Velasco leased to Soldati a tract of land with sixty cows, for the term of from July 11, 1876, to October 1, 1879. In the lease, it was agreed that Soldati should not have the right to pasture any stock of any kind on the premises other than the sixty cows, except the necessary horses to use in the dairy business. January 6, 1879, Mrs. Velasco sold the leased property to plaintiff. From January 26 to October 1, 1879, Soldati pastured twenty-five cows and other animals on the land, other than the sixty cows leased. This action was brought to recover for the pasturage of the extra animals.
The defendant was permitted to prove, against plaintiff's objection, that while Mrs. Velasco was the owner, she and defendant made a verbal agreement by which he might pasture the extra animals; and [8 P. 519] the court instructed the jury that such verbal agreement was binding on the plaintiff. This was error. "A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise." (Civ. Code, sec. 1698.) The agreement to pasture the extra animals without charge was made while Mrs. Velasco was owner, but was not acted upon until after she conveyed to plaintiff, therefore her verbal agreement would not bind him.
The court also instructed the jury that if Mrs. Velasco and Soldati made an agreement by which the latter might pasture the extra cattle without charge, the defendant was entitled to a verdict. For the reasons above given, this was error.
Judgment and order reversed, and cause remanded for a new trial.