Fountain Valley Transit Mix, Inc. - Page 19

                                        -  -19                                           
               Petitioner argues in a memorandum filed prior to the briefs            
          in this case, but incorporated in petitioner's opening brief by             
          reference, that, in the alternative, the parties subsequently               
          modified the Nikki lease.  Since the contract was not modified in           
          writing until Agent Siebert pointed out to Kurt Caillier that the           
          tire expenses were to be borne by the lessor under the contract,            
          which occurred subsequent to the taxable year at issue in this              
          case, petitioner argues that the parties modified the contract by           
          an executed oral agreement.  Cal. Civ. Code sec. 1698 (West 1982)           
          states as follows:                                                          
                    (a) A contract in writing may be modified by a                    
               contract in writing.                                                   
                    (b) A contract in writing may be modified by an                   
               oral agreement to the extent that the oral agreement is                
               executed by the parties.                                               
                    (c) Unless the contract otherwise expressly                       
               provides, a contract in writing may be modified by an                  
               oral agreement supported by new consideration.  The                    
               statute of frauds * * * is required to be satisfied if                 
               the contract as modified is within its provisions.                     

          While it is clear under California law that a written contract              
          may be modified either by a subsequent written contract or by an            
          executed oral contract, petitioner has offered no evidence                  
          whatsoever of either an oral agreement or of any new                        
          consideration.  Kurt Caillier testified that until 1992 he was              
          unaware of the provision in the lease that Nikki's pay for tires            
          on the trucks leased to petitioner.  This is contradictory to an            
          oral agreement modifying the provision.                                     




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