Dennison v. Harden

• Decision Date: 20 November 1947
• Docket Number: 30243.
• Citation: 29 Wn.2d 243,186 P.2d 908
• Parties: DENNISON v. HARDEN et ux.
• Court: Washington Supreme Court

186 P.2d 908

29 Wn.2d 243

DENNISON v. HARDEN et ux.

No. 30243.

Supreme Court of Washington

November 20, 1947

Department 1

Action by M. L. Dennison against Charles H. Harden and Florence M Harden, his wife, for breach of warranty in real estate contract. From an adverse judgment, plaintiff appeals.

Judgment affirmed.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Chavelle & Chavelle, of Seattle, for appellant.

Skeel McKelvy, Henke, Evenson & Uhlmann and Altha P. Curry, all of Seattle, for respondents.

HILL Justice.

On May 12, 1943, the appellant and his wife and the respondents entered into an executory real estate contract whereby the respondents agreed to sell, and the appellant and his wife agreed to purchase, for twelve thousand dollars,

'* * * the following described lot, tract, or parcel of land situated in King County, State of Washington, to-wit:

'TL-17 that portion of NE 1/4 OF SE 1/4, LY N of Ethel O. Peck Rd Less S 96' of W. 417.39' Thereof, Sec. 8 Twp 22 Range 4.

'Purchase price to include property and fruit trees, all tools, tractor, truck, fertilizer, etc., fruit trees, berry bushes, and crops in ground.

'With the appurtenances thereto belonging * * *.'

One thousand dollars was paid on the execution of the contract, and the balance was to be paid in installments of fifty dollars a month.

The contract contained six numbered paragraphs: No. 1 set out the time and amount of the payments; No. 2 contained the agreement of the purchasers to pay all taxes and assessments and to keep the buildings insured; No. 3 provided that no extension of time of payment or waiver of any default should affect the right to require prompt payment of any subsequent installments; No. 4 provided that the purchasers would execute a mortgage on demand of the vendors; No. 5 provided that the land should be 'conveyed by a good and sufficient warranty & title insurance deed,' on full payment of the purchase price or on demand of the vendor for a mortgage covering the unpaid portion of the purchase price; and No. 6 contained the usual 'time is of the essence' provisions.

The contract was signed and acknowledged by appellant and his wife and by both respondents.

Appellant urges that there was a warranty that there were 276 Pacific Gold peach trees, that being the number of trees in the so-called 'commercial orchard.' Appellant expressly disclaims any fraud on the part of the respondents, but insists that there was a breach of the warranty in that the trees were of a scrub or worthless variety, and asks damages therefor. The evidence sustaining this claim of express warranty was that the respondents had represented, on two or three occasions during the preliminary negotiations, that there were 276 Pacific Gold peach trees in the commercial orchard, and had agreed to and did furnish documents from the nursery company which had supplied the trees substantiating the fact that they were Pacific Gold peach trees. These documents were offered and refused as exhibits.

The trial court ultimately became convinced that the parol evidence rule was applicable, and that the evidence which had been received and the exhibits which had been offered, varied and added to the terms of the written contract between the parties. It therefore granted a motion to strike the evidence which had already been admitted, and a judgment of dismissal necessarily followed.

We will not restate or discuss that familiar rule and the reasons for it. See McGregor v. First Farmers'-Merchants' Bank & Trust Co., 180 Wash. 440, 40 P.2d 144.

It is to be noted that, as cited in Farley v. Letterman, 87 Wash. 641, 152 P. 515, 516:

'By 'parol' in connection with the present principle is properly meant, not merely oral utterances, but also informal writings, i. e., writings (letters, memoranda, etc.) other than the single and final written memorial. * * *' I Greenleaf on Evidence, 16th Ed., 449, note to § 305g.

Appellant urges four reasons why the evidence concerning the warranty was admissible:

1. It went in without objection.

The parol evidence rule is not a rule of evidence; it is a rule of substantive law, and testimony falling within the inhibitions of the rule does not become admissible merely because it is not objected to: Andersonian Inv. Co. v. Wade, 108 Wash. 373, 184 P. 327; McGregor v. First Farmers'-Merchants' Bank & Trust Co., supra.

2. It was within an exception to the rule permitting parol and extrinsic evidence to 'clarify and properly identify the subject matter of the contract.'

We assume that the recognized exception to the parol evidence rule that appellant has in mind is that parol evidence is admissible to explain an ambiguity. Appellant argues that because the contract said 'fruit trees' and did not identify the kind, other evidence should have been admitted for that purpose. Appellant states in his reply brief:

'The very fact that under the terms of the contract as written by the respondents, the subject-matter is shrouded in mystery and confusion, demands the admission of parol or extrinsic evidence to clarify this patent ambiguity * * *.'

No question is raised here concerning the meaning of 'etc.,' which is the only word that might call for clarification. We see nothing shrouded in mystery and confusion about 'property and fruit trees' or 'fruit trees, berry bushes, and crops in ground.' The purchaser knew exactly what trees he was getting; the contract called for fruit trees, and he got fruit trees. There would be no patent ambiguity clarified by permitting appellant to add, after 'fruit trees,' the words 'of which 276 are Pacific Gold peach trees.'

3. It was within an exception to the rule permitting parol and extrinsic evidence to show 'all facts and circumstances attending the transaction and the intention of the contracting parties.'

Appellant's principal contention under the above heading is that the warranty on which he relies is a collateral and contemporaneous agreement. Authority is quoted to the effect that if a collateral and contemporaneous agreement acts as an inducement to enter into a contract, parol evidence of such collateral and contemporaneous agreement is admissible, though it may very or materially change the contract, without its being necessary to allege that the agreement was left out of the contract through fraud, accident, or mistake.

Such, however, is not the general rule, and it is not the law of this jurisdiction. We said, in Asher Bros. Gen. Illuminating Co. v. General Illuminating Co., 193 Wash. 105, 74 P.2d 495, 496:

'Respondent asserts that a contemporaneous oral agreement which is the inducing cause for entering into a written contract, may be proven by parol evidence. Many cases are cited as supporting the statement. We have examined them all with much interest, particularly those from the Supreme Court of Pennsylvania, which do hold that a verbal promise, on the faith of which a written contract is executed, may be established without alleging fraud or mistake, even though it vary the terms of the writing. Noel v. Kessler, 252 Pa. 244, 97 A. 446; Excelsior Saving Fund & Loan Ass'n v. Fox, 253 Pa. 257, 98 A. 593.

'But this court has long been committed to the rule that, where a written agreement purports to cover the entire subject matter with respect to which the parties are contracting, evidence of a contemporaneous or prior oral agreement, contradicting or altering the terms of the writing, is inadmissible, in the absence of fraud or mutual mistake. Hubenthal v. Spokane & Inland R. Co., 43 Wash. 677, 86 P. 955, 960; Anderson v. Mitchell, 51 Wash. 265, 98 P. 751; Union Machinery & Supply Co. v. Darnell, 89 Wash. 226, 154 P. 183; Grubb v. House, 93 Wash. 200, 160 P. 421; Thompson & Stacy Co. v. Evans, Coleman & Evans, 100 Wash. 227, 170 P. 578; Kelley v. Smith, 101 Wash. 475, 172 P. 542. * * *'

Oral warranties relating to the subject matter of apparently complete written contracts are not such collateral and contemporaneous agreements as may be proved by parol.

In Grubb v. House, 93 Wash. 200, 160 P. 421, 422, there was a representation that the well which supplied water to a hotel contained a perpetual and abundant supply of good, pure water, fit and suitable for drinking and other purposes. The court said:

'If the allegations are intended to show the breach of a prior or contemporaneous oral warranty as to the water in the well, no cause of action is stated. On this question, the rule is that where the instrument is complete in itself, evidence of a prior or contemporaneous warranty is inadmissible. * * *'

In Pacific Aviation Co. v. Philbrick, 67 Wash. 414, 121 P. 864, 865, the court said:

'Touching the question of a parol warranty, it suffices to say that the bill of sale to Waldron warrants title only. The instrument is complete in itself, and evidence of a prior or contemporaneous parol warranty is inadmissible. Hockersmith v. Ferguson, 63 Wash. 581, 116 P. 11; Buffalo Pitts Co. v. Shriner, 41 Wash. 146, 82 P. 1016; Davis Calyx Drill Co. v. Mallory, 8 Cir., 137 F. 332, 69 C.C.A. 662, 69 L.R.A. 973; Seitz v. Brewers' Refrigerating M. Co., 141 U.S. 510, 12 S.Ct. 46, 35 L.Ed. 837.'

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