We  think  the  allegations  of  the  complaint  must  be  de-
termined as  sufficient.  Notwithstanding  the  previous
agreements  in  writing,  it  was  competent  for  the  parties
thereto  to  agree  to  such  a  disposition  of  the  logs  as  is  al-
leged to  have  been  made,  and  this  they  could  do  by  parol
notwithstanding  the  statute  of  frauds,  and  without  the
actual  payment  of  any  consideration,  and  this  new  agree-
ment plaintiff  could  enforce  if  it  was  true,  as  was  alleged,
that  the  defendant  took  possession  of  the  logs,  and  thereby
took  it  out  of  the  power  of  the  plaintiff  to  do  the  only
thing  which  under  the  contracts  it  remained  for  him  to  do,
viz.,  to  actually  deliver  the  logs  at  the  mill.  The  trans-
action as  alleged  in  the  complaint  constituted,  as  we  view
it,  substantially  an  abrogation  of  the  contract,  so  far  as


40  TINGLEY  v.  FAIRHAVEN  LAND  CO.
Opinion  of  the  Court — Stiles,  J.  [9  Wash.
the  logs  at  that  time  in  the  river  and  the  booms  were  con-
cerned; and  these  were  the  only  logs  which  were  covered
by  the  alleged  waiver  and  which  are  sued  for  in  this  action.
