Farley v. Letterman

• Decision Date: 05 November 1915
• Docket Number: 12490.
• Citation: 87 Wash. 641,152 P. 515
• Parties: FARLEY v. LETTERMAN et ux.
• Court: Washington Supreme Court

152 P. 515

87 Wash. 641

FARLEY v. LETTERMAN et ux.

No. 12490.

Supreme Court of Washington

November 5, 1915

Department 1. Appeal from Superior Court, Whitman County; R. L McCroskey, Judge.

Action by M. Farley against E. H. Letterman and wife. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

D. C Dow, of Pullman, for appellants.

John W Mathews, of Pullman, for respondent.

HOLCOMB, J.

Respondent brought action against the appellants to recover judgment upon six separate causes of action, aggregating $1,427.68. Some of these causes of action grew out of a certain lease between the parties, and the others were alleged independent transactions between them. Appellants answered, denying most of the allegations in support of respondent's several causes of action, and also set up several affirmative defenses and counterclaims. On trial to the court and a jury the jury awarded respondent (plaintiff) a verdict in one sum for $898.18. The contest is waged by appellants: First, on the admission by the court of certain evidence as to the right of respondent to pay cash rent for the year 1912 instead of grain rent, as provided in the lease, and the conclusiveness of defendants' counterclaim for $675 as a part of the proven value of one-third of the grain rent; and, second, upon a recovery by respondent on his fourth cause of action for a sum of $920, or any part thereof, for alleged superintendence of appellants' farms and buildings during the period from October, 1909, to October, 1913.

1. The lease executed by the parties provided that the respondent should pay as rent for the 460 acres of land leased to him a one-third part of all the grain, clear of all expense, grown upon said premises. Respondent, however, offered evidence, which was admitted by the court, by way of a letter written by appellant E. H. Letterman to respondent, to the following effect:

'Pullman, Decbr. 20th, 1911.

'Mr. M. Farley. Regarding our lease for a term of six year I had Mr. Downen make the lease on the plan of 1/3 share of crop. But as before spoken of the 1912 crop you can pay me $1,000 as cash rent or you can pay one-third share. In case the crop would not amount to $1,000.00 in cash 1/3 share of same will be all right. Later years if you prefer the cash rent we can come to some agreement satisfactory to both. The same con. had but not on the basis of the Hood rent.

E. H. Letterman.'

The court admitted this evidence on the theory of an accord and satisfaction. This was a mistaken conception, for the reason that an accord and satisfaction cannot arise until there exists some difference or controversy between the parties thereto. Perkins v. Headley, 49 Mo.App. 556; Bull v. Bull, 43 Conn. 455; McKay v. Myers, 168 Mass. 312, 47 N.E. 98; Bloomington Mining Co. v. Brooklyn, etc., Ice Co., 171 N.Y. 673, 64 N.E. 1118. At the time the instrument in question was signed and delivered to the respondent, there was no contract, no breach of contract, no controversy and nothing to dispute over or satisfy.

The appellants contend that it would be incompetent and inadmissible for any purpose as tending to vary the terms of a written instrument, under the well-known rule that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. As is said by Greenleaf, Evidence (16th Ed.) § 305b:

'This principle is well established and unquestioned in the law. The difficulties that arise are concerned with the scope of its application. The effect of the principle is an exclusionary one, i. e., to reject from consideration, as having no legal standing and effect, data of conduct other than the sole written memorial.'

'The inquiry is, for each instance anew, Was the subject of the offered agreement intended by the parties to be covered or disposed of in the written memorial? If they intended that writing to represent the net result of their negotiations on that topic, then no other matter, whether oral or written, is to be consulted for ascertaining the terms of their act. * * * It seems more accurate in practice and more correct on principle * * * to inquire, more broadly, whether the subject of the offered agreement has been intended to be wholly disposed of by the written memorial; if so, the agreement is not to be considered, whether it is consistent or inconsistent with the memorial's specific terms.' Same, § 305f.

'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.' Same, note to § 305g.

In the case at bar the evidence shows that Farley had been the occupant of the premises of appellants under a previous lease by appellants to one Hood. Farley had become partner with Hood. Hood had surrendered his lease, Farley was about to take a new lease on land from appellants, and appellants had procured one Downen to prepare the lease. The lease recites a date of October 1, 1911. It was executed by the parties before Downen, a notary public, on January 22, 1912. The letter in regard to the lease prepared by Downen bears date in December, 1911, some 30 days prior to the execution of the lease; but if it referred to the lease that was afterwards executed before Downen, it apparently was merged in that complete instrument. There is nothing to show that there was any meeting of the minds of the parties as to the offer of Letterman to respondent made by the letter of December, 1911.

It may be shown by parol that, although the instrument absolute in its terms was actually delivered, such delivery was subject to a condition, agreed upon collaterally in parol, that upon a certain contingency or event it should not be binding. Parker v. Bond, 121 Ala. 529, 25 So. 898; Reynolds v. Robinson, 110 N.Y. 654, 18 N.E. 127; Wilson v. Powers, 131 Mass. 539; McFarland v. Sikes, 54 Conn. 250, 7 A. 408, 1 Am. St.

Rep. 111; Westman v. Krumweide, 30 Minn. 313, 15 N.W. 255.

It may also be shown that a written obligation has been discharged in accordance with the terms of a collateral oral agreement different from those of the instrument. Buchanon v. Adams, 49 N. J. Law, 636, 10 A. 662, 60 Am. Rep. 666; Howard v. Stratton, 64 Cal. 487, 2 P. 263; Johnston v. McCart, 24 Wash. 19, 63 P. 1121. 'It is also urged that the contemporaneous oral agreement above referred to is one upon which no evidence could have been received, because it contradicted the terms of the written contract. This oral agreement was not a contradiction of the terms of the written contract, and did not vary that contract except in the manner of payment, and this can be shown. It is also competent to show that the parties, either at the same time or subsequently, upon a new consideration, agreed how the payments provided for in the original contract might be made, either in money or money's worth, and this is not such a variance as is contemplated by the general rule here announced'--citing 1 Greenleaf, Evidence (15th Ed.) § 303, and Weeks v. Medler, 20 Kan. 57.

See, also, Sutton v. Griebel, 118 Iowa, 78, 91 N.W. 825.

In Weeks v. Medler, supra, the Supreme Court of Kansas, per Brewer, J., said:

'A parol contract may be made between the parties contemporaneously with the execution of the written agreement, providing it is separate and independent, and its terms in no way conflicting with or contradictory of the written stipulations. Thus, where A. sold to B. a sewing

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