Fleetham v. Schneekloth

• Decision Date: 17 April 1958
• Docket Number: No. 34493,34493
• Court: Washington Supreme Court
• Parties: Harold J. FLEETHAM, Respondent, v. William M. SCHNEEKLOTH and Annetta G. Schneekloth, his wife, Appellants.

Page 176

52 Wn.2d 176

324 P.2d 429

Harold J. FLEETHAM, Respondent, v. William M. SCHNEEKLOTH and Annetta G. Schneekloth, his wife,

Appellants.

No. 34493.

Supreme Court of Washington, Department 1.

April 17, 1958.

Elvidge, Watt, Veblen & Tewell, Seattle, Frederick Barker, Redmond, for appellants.

Ostrander & Van Eaton, Kirkland, for respondent.

OTT, Justice.

June 15, 1954, William M. Schneekloth and Annetta G. Schneekloth, his wife, executed and delivered to Harold J. Fleetham, a real-estate broker, the following listing agreement:

'In consideration of services rendered and to be rendered by you in connection with the sale of the following described real estate, situated in King County, Washington, to-wit: SE 1/4 of SE 1/4, Sect. 6 Twp 24 N Range 6 E.W.M. Also Tract 1 of Viewpoint Park I grant you the sole right to show said property and to sell the same for a period of 10 yrs * * *

'The sale price is $ agreed upon, terms as follows: agreed upon and I agree to pay you a commission of 10% on the price at which the property is sold. Should a sale of the property be made within thirty days after the termination of this Authority to Sell Real Estate, or any extension hereof, to a person to whom you have shown the property or with whom you have negotiated in connection with the sale of the property, I agree to pay you in said event a commission equal to 10% of the said sale price.'

April 1, 1955, Harold Fleetham obtained an offer from the Cougar Corporation to purchase the property for twenty-eight thousand dollars. This offer was rejected by the Schneekloths.

May 7, 1955, through another broker, the Cougar Corporation purchased from the Schnneekloths, for thirty thousand dollars, the property described in the listing agreement and a right to use an undivided one-half interest in certain lake-shore property, which was separated from the tracts described in the listing agreement by a railroad right of way two hundred feet wide.

Fleetham commenced this action to collect ten per cent of the sales price from the Schneekloths, alleging that he was entitled to the brokerage commission in accordance with the terms of the exclusive listing agreement. Defendants' answer denied liability under the contract and alleged affirmative defenses.

The cause was tried to the court, and, from a judgment in favor of the plaintiff in the sum of three thousand dollars, plus interest, the defendants have appealed.

Appellants contend that the exclusive listing agreement of June 15, 1954, is void, in that it did not comply with the requirements of the statute of frauds (RCW 19.36.010 [cf. Rem.Rev.Stat. § 5825]) because all of the property which the parties intended to sell was not described therein. Appellants' evidence in support of this contention was that the beach property and the property described in the listing agreement were purchased as a unit by the Schneekloths, and that they planned to subdivide the tract for home sites with beach privileges, which plans were abandoned subsequent to the execution of the listing agreement.

The listing agreement in the instant case is complete and unambiguous. It accurately describes property which the appellants owned. This court has adhered to the rule that, where there is no ambiguity, all conversations contemporaneous negotiations, and parol agreements between the parties prior to a written agreement are merged therein. In the absence of accident, fraud or mistake, parol evidence is not admissible for the purpose of contradicting, subtracting from, adding to, or varying the terms of such written instruments. Truck-Trailer Equipment Co. v. S. Birch & Sons Construction Co., 1951, 38 Wash.2d 583, 231 P.2d 304; Simons v. Stokely Foods, Inc., 1950, 35 Wash.2d 920, 216 [324 P.2d 431] P.2d 215; Buyken v. Ertner, 1949, 33 Wash.2d 334, 205 P.2d 628.

The parol evidence rule is not a rule of evidence, but one of substantive law. Even though evidence which falls within the inhibition of the rule is admitted without objection, it is not competent and cannot be considered as having probative value. St. Paul & Tacoma Lumber Co. v. Fox, 1946, 26 Wash.2d 109, 173 P.2d 194, and cases cited.

Appellants do not contend on this appeal that the failure to include the lakeshore property in the agreement was the result of accident, fraud or mutual mistake. Applying the rules above stated to the instant case, appellants' contention that the agreement did not express the intent of the parties was...