- -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.Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: May 25, 2011