Cameron v. Purbaugh

• Decision Date: 29 July 1924
• Docket Number: 18518.
• Court: Washington Supreme Court
• Parties: CAMERON et ux. v. PURBAUGH et ux.

227 P. 858

130 Wash. 440

CAMERON et ux. v. PURBAUGH et ux.

No. 18518.

Supreme Court of Washington

July 29, 1924

Department 1.

Appeal from Superior Court, King County; Smith, Judge.

Action by Harry W. Cameron and wife against W. H. Purbaugh and wife. Judgment for plaintiffs, and defendants appeal. Reversed, and action dismissed.

John F Murphy and John A. Homer, both of Seattle, for appellants.

Wm. L Waters, of Fullerton, Cal., and Byers & Byers, of Seattle for respondents.

MACKINTOSH, J.

Appellants being the owners of a farm entered into a contract whereby they agreed to sell it to the respondents, who were to make certain annual installment payments on the principal, to pay the taxes and assessments levied against it, time being of the essence of the contract. The respondents entered into possession and did not make the payments of principal as they came due, the appellants not insisting upon a strict performance; nor were the interest, taxes, and assessments paid according to the terms of the contract. The respondents were in possession over 2 years and 8 months when the appellants and respondents had a meeting on September 12, at which the question of back taxes, assessments, and delinquencies on the principal installment and interest were discussed, and the following day the appellants served notice upon the respondents to declare an intention to forfeit the respondents' contract for failure to comply with its terms, and stated that, unless the delinquent payments were paid on or before September 25, the appellants would declare the contract canceled and a forfeiture of all the payments made. On September 29, the notice not having been complied with, the appellants served the respondents with a notice declaring all of the respondents' interest in the premises forfeited and demanded immediate possession. In compliance with this notice appellants and respondents entered into an agreement whereby the appellants continued to occupy the premises as tenants on monthly rental for the following four months. In October the respondents began this action to recover damages for the alleged breach of the contract by the appellants as modified by certain verbal agreements. From a judgment against them, the appellants bring the record here for review.

The first error assigned is that the court admitted over the appellants' objection, the testimony of respondents with respect to alleged oral agreements or statements varying and modifying the written contract to the effect that the appellants would not insist on the payments being made as they became due under the contract. This assignment covers the admission of a great deal of testimony consisting of conversations at various times and places and letters passing between appellants and respondents regarding efforts made by the respondents to secure loans upon the property and matters of that nature. This testimony was inadmissible under the well-established rule that contracts which, under the law, must be in writing cannot be modified by oral testimony tending to show that the parties have altered the contract by making new conditions and terms. This is true unless, of course, the new contract has been so far performed as to take it out of the requirements that it be in writing. No such performance took place in this case. This rule has been stated in the following cases from this court; Spinning v. Drake, 4 Wash. 285, 30 P. 82, 31 P. 319; Nichols v. Oppermann, 6 Wash. 618, 34 P. 162; Brewer v. Cropp, 10 Wash. 136, 38 P. 866; Swash v. Sharpstein, 14 Wash. 426, 44 P. 862, 32 L. R. A. 796; Chamberlain v. Abrams, 36 Wash. 587, 79 P. 204; Reiff v. Coulter, 47 Wash. 678, 92 P. 436; Graves v. Graves, 48 Wash. 664, 94 P. 481; Thill v. Johnston, 60 Wash. 393, 111 P. 225; Gerard-Fillio Co. v. McNair, 68 Wash. 321, 123 P. 462; Reard v Ephrata Homes Co., 78 Wash. 180, 138 P. 678; Woolen v. Sloan, 24 Wash. 551, 162 P. 985; McInnis v Watson, 116 Wash. 680, 200 P. 578; Anderson v. Anderson, 223 P. 323; and numerous cases cited in those opinions.

The question then arises whether there was anything in the record which would entitle the respondents to recover. It is claimed that the appellants granted indulgences to the respondents in not enforcing strict performance in the way...