1. Ordinarily, a contract which must, under the statute of frauds, be in writing, and which is actually put in writing, can not be subsequently modified by parol agreement; but where the modified contract has been fully executed, or where there-has been performance on one side, accepted by the other in accordance with the contract, or[*87] where there has been such part performance of the contract as would render it a fraud in the party refusing to comply if the court did not compel the performance, the contract is taken out of the statute of frauds. Civil Code, §§ 3222 (7), 3223 (1, 2, 3).

2. The plaintiff’s petition as amended shows that the original contract, which was for the purchase of cotton for an amount more than $50, and which was put in writing, was subsequently modified by a parol agreement, and t<hat under this modified contract the plaintiff delivered 125 bales of cotton to the defendant, who retained 47 bales and paid the plaintiff for them. This partial performance of the modified contract was sufficient to take it out of the statute of frauds; and the court did not err in overruling the demurrer to the petition.

Judgment affirmed.