Opinion
On defendant's motion for summary judgment, the District Court, Neese, J., held that there was no genuine issue of material fact with respect to plaintiff's contention that the written contract was modified by oral representation.
Motion granted.
William M. Leibrock, Newport, Tenn., for plaintiff.
Arthur G. Seymour and W. Kyle Carpenter, Knoxville, Tenn., for defendant.
MEMORANDUM OPINION AND ORDER
NEESE, District Judge.
A magistrate of this district recommended on March 7, 1980 that the motion of the defendant for a summary judgment herein be granted. 28 U.S.C. s 636(b)(1) (B). Having considered de novo those portions of the recommendation to which timely written objection was served and filed, the undersigned judge hereby ACCEPTS such recommendation. 28 U.S.C. s 636(b)(1).
The plaintiff failed to demonstrate the existence of any genuine issue(s) of material fact between the parties as to its contention that the written contract between them was modified by subsequent oral representations of the defendant. As a matter of law, the parol and written evidence relied upon by the plaintiff is insufficient to amount to a subsequent modification of these parties' written agreement. To modify a written contract, " * * * an oral agreement must have the essential elements of a binding contract * * *." 17 Am.Jur. (2d) 937, Contracts s 467; accord: Akers v. J. B. Sedberry, Inc. (1955), 39 Tenn.App. 633, 286 S.W.2d 617, 620-621(1), (2), certiorari denied (1956); Balderacchi v. Ruth (1952), 36 Tenn.App. 421, 256 S.W.2d 390, 391(2), certiorari denied (1953); Wright v. Fisher (1940), 24 Tenn.App. 650, 148 S.W.2d 49, 53(3, 4), certiorari denied (1940).
The motion of February 19, 1980 herein hereby is GRANTED; summary judgment will enter for the defendant. Rules 56(c), 58(1), Federal Rules of Civil Procedure.