Bright v. Hanover Fire Ins. Co.

• Decision Date: 10 December 1907
• Citation: 92 P. 779,48 Wash. 60
• Parties: BRIGHT v. HANOVER FIRE INS. CO.
• Court: Washington Supreme Court

92 P. 779

48 Wash. 60

BRIGHT v. HANOVER FIRE INS. CO.

Supreme Court of Washington

December 10, 1907

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by Barnard Bright against the Hanover Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

Granger & Magill, for appellant.

Bostwick & Mulvihill, for respondent.

RUDKIN J.

On the 30th day of December, 1905, O. L. Allen was the owner of a certain hotel building at Arlington, in Snohomish county together with the furniture and fixtures therein situated. On the above date he entered into a contract with the plaintiff Bright, whereby he executed and placed in escrow a deed and bill of sale conveying and transferring the hotel building and personal property to the plaintiff. The escrow agreement provided that Allen should remove certain clouds and incumbrances against the property on or before March 15, 1906, that the plaintiff should deposit in escrow a conveyance of certain property owned by him, together with a release of a mortgage against it, and that, if Allen should fail for any reason to comply with the terms of the escrow agreement, the respective deeds should be returned and the agreement to convey should thereupon terminate and be at an end. On the 8th day of January, 1906, the plaintiff entered into possession of the hotel property under an oral agreement with his vendor, and placed therein personal property of his own of the value of $290.92. On the 18th day of January, 1906, the defendant company executed and delivered to the plaintiff its policy of insurance, covering $1,100 on the hotel building $337.50 on the furniture and fixtures, and $62.50 on the bar and bar fixtures. On the 19th day of February, 1906, the hotel building and furniture were totally destroyed by fire, and the present action was instituted to recover the amount of the insurance. From a judgment in favor of the plaintiff for the full amount claimed, the present appeal is prosecuted.

Numerous errors are assigned in the appellant's brief, but the assignments have all been discussed under three general heads, and we will pursue the same course.

It is first contended that the court erred in permitting the respondent to prove that he entered into possession of the hotel property under an oral agreement with his vendor, because such testimony tended to vary and contradict the terms of the escrow agreement. We deem it unnecessary to determine whether the testimony offered did, in fact, very of contradict the terms of the escrow agreement, for the appellant here was not a party to that agreement, and in such cases the rule now invoked by it has no application. 'The rule excluding parol evidence to vary or contradict a written instrument applies only in controversies between the parties to the instrument and those claiming under them. It had no application in controversies between a party to the instrument on the one hand and a stranger to it on the other, for the stranger, not having assented to the contract, is not bound by it, and is therefore at liberty when his rights are concerned to show that the written instrument does not express the full or true character of the transaction. And, where a stranger to the instrument is thus free to vary or contradict it by parol evidence, his adversary, although a party to the instrument, must be equally free to do so. This has been held to be true in the case of writings of all kinds, as, for example, deeds, mortgages, leases, bills of sale, licenses, insurance policies, and contractual receipts. And even a judicial record is not conclusive upon persons not parties or privies to the action or proceeding.' 17 Cye. 749.

It is next contended that the court erred in permitting the respondent to prove that the appellant's agent had actual notice of the nature of the respondent's claim or title to the hotel building and contents at the time the policy in suit was issued. The record before us does not present this question. Only one objection to this character of testimony was interposed by the appellant. That objection was not ruled upon, and the question to which the objection was interposed was never answered. We cannot, therefore, consider this assignment.

It is next contended that, inasmuch as the deed and bill of sale to the hotel property and contents were in escrow, and the condition upon which they were to be delivered over uncomplied with at the time of the destruction of the property by fire, the general property in the hotel and contents was in Allen at...