We have examined the entire record and are of the opinion that the jury was fully justified in reaching the conclusion that the contract was rescinded by mutual consent of the parties who entered into it. A rescission, under the circumstances here present, may be established by evidence of a parol agreement of the parties made subsequent to the written contract which is the subject of the rescission. Niernberg v. Feld, 131 Colo. 508 283 P.2d 640. It is further argued that the trial court erred in holding that a written contract can be rescinded by unilateral action of one party to such contract.
See Annot., 42 A.L.R.3d 242, 251 (1972). In support of their contention that an oral rescission of an earnest money agreement for the purchase of land is valid absent any acts of performance, the buyers rely on Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640 (1955). In that case, the Colorado Supreme Court upheld the oral rescission of an executory contract for the sale of land under a statute of frauds which, like Utah's, applies specifically to the surrender of interests in land.
The first such exception is when the subsequent oral agreement amounts to a revocation of the written contract. Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640; see also Coulter v. Anderson, 144 Colo. 402, 357 P.2d 76; Payne v. Cumming, 136 Colo. 244, 315 P.2d 818. A second exception results when a party consents to or requests a postponement of performance by the other party which is for his benefit and the other party has acted on such request or consent.
II Plaintiff also argues that the evidence did not show any consideration for the rescission agreement and that, therefore, the trial court's finding of rescission was not justified. However a promise for a promise, releasing each party from further performance, is mutual consideration sufficient to support an agreement to rescind an executory contract for the sale and purchase of real estate. Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640. See also A. Corbin, Contracts ยง 1294 (one vol. ed.).
Counsel has not cited, nor have we found case law which applies to the particular facts of this case. Our Supreme Court has held that a written contract for the sale of land may be rescinded by subsequent oral agreement. Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640. However, where a rescission of the written contract is effected by a novation, that is, by a substitution of an oral agreement for the written contract, commentators have suggested that not only the positive terms of the oral agreement, but the rescission of the prior written contract should be unenforceable.
The statute does not apply to an oral agreement to extend the time for performance of an executory contract. See Niernberg v. Feld, 131 Colo. 508, 283 P.2d 640; Payne v. Cumming, 136 Colo. 244, 315 P.2d 818. [2] Defendant asserts that because tender of the purchase price was not made the trial court erred in ordering specific performance.