Jones-Rosquist-Killen Co. v. Nelson

• Decision Date: 17 October 1917
• Docket Number: 14089.
• Citation: 167 P. 1130,98 Wash. 539
• Parties: JONES-ROSQUIST-KILLEN CO. v. NELSON et ux.
• Court: Washington Supreme Court

167 P. 1130

98 Wash. 539

JONES-ROSQUIST-KILLEN CO. v. NELSON et ux.

No. 14089.

Supreme Court of Washington

October 17, 1917

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by the Jones-Rosquist-Killen Company against John Nelson and wife. From a judgment for plaintiff, defendants appeal. Reversed in part, and affirmed in part.

Louis E. Shela, of Seattle, for appellants.

ELLIS C.J.

Plaintiff corporation brought this action against defendants, John Nelson and wife, to recover the purchase price of a piano alleged to have been sold to them under the following contract:

'I, we, and each of us promise to pay to the order of Jones, Rosquist & Killen the sum of two hundred ($200) dollars, at their office in Seattle, Wash., as follows: Twenty-five dollars ($25) per month on the 5th day of each and every month thereafter until fully paid, commencing on the 5th day of May, 1916, with interest on the amount unpaid at the rate of 8 per cent. per annum, payable monthly. This note is given for the purchase of a Christman piano, style 2758 (receipt of which instrument is hereby acknowledged), the total amount of said purchase price being four hundred twenty-five ($425) dollars, of which I have this day paid $225, and I agree that I will keep the said instrument in good order, and that it shall not be removed from No. 634 West 54th street, in the city of Seattle, county of King, state of Washington, without the written consent of the said Jones-Rosquist-Killen Company Incorporated, and the legal title thereto is in the said Jones-Rosquist-Killen Company, Incorporated, and shall remain in said Jones-Rosquist-Killen Company, Incorporated, until they shall make bill of sale and dispose of same to me after all payments aforesaid shall have been fully paid, and that I have no right to dispose of or incumber said instrument in any way until I have received bill of sale. I also agree that if I fail to pay any of said installments when due, or fail to perform any of the conditions herein, or if said instrument be attached or levied upon, or should I refuse to accept delivery of or return the said instrument, all of said sum, $200, shall in any of said cases, at the option of said Jones, Rosquist & Killen, immediately become due and payable and the said company may enforce payment of the entire sum then unpaid, and interest thereon, or may, if its agents or assigns so elect, rescind this note and take possession of the said instrument without legal process, and for the purpose may enter any premises where the same may be all damages for entry being hereby expressly waived, and all money paid by me on account of this note shall in the event of said instrument being repossessed by said Jones, Rosquist & Killen, its agents or assigns, be considered as rent for the use of said instrument for the time same was in my possession. I also covenant and agree to pay all taxes, assessments, and liens of every kind which by law may become due and payable on said instrument, also all taxes which may be levied or imposed on this note, and at my own expense to keep insured against loss by fire, for the full insurable value, the said instrument during the existence of this debt, in a reliable insurance company, with loss, if any, under said insurance, payable to Jones, Rosquist & Killen, and to deliver the policy and renewals thereof to the said Jones, Rosquist & Killen, and if I shall fail to pay taxes, assessments, or insurance herein provided to be done, the said Jones, Rosquist & Killen, or assigns, shall have the option to pay same, and the payment so made shall be added to and become a part of the amount due herein. In all matters mentioned herein, time is declared to be the essence of this note. In case this note, or any portion thereof, is placed in the hands of an attorney for collection, or in case action is instituted to collect same, or any portion thereof, I hereby agree to pay such additional sum as may be necessary and reasonable to pay the expenses of said collection and a reasonable attorney's fee for instituting such action.

'In witness whereof we have set our hands to this note this 5th day of April, 1916.

'[Signed] Ingeborg Nelson.

'Witness: Mrs. Anna Myhre.

'Accepted:

'Jones-Rosquist-Killen Co., Inc.,

'By G. W. Rosquist.'

Defendants answered separately. Ingeborg Nelson set up rescission as an affirmative defense. John Nelson denied that the contract was signed in his behalf, or in behalf of the community, and set up as an affirmative defense that the piano was left on the porch of his residence during the absence of the family on April 7, 1916; that he notified plaintiff to remove it, otherwise storage would be charged; that the plaintiff neglected to remove it; and that a reasonable storage charge is $5 per month. Judgment was asked for the accrued charges, and that they be declared a lien on the piano. When the cause came on for trial, defendants demurred on the ground that the action was prematurely brought and that the complaint did not state a cause of action. These demurrers were overruled. The cause was tried without a jury, and, on findings made in favor of plaintiff, judgment was entered against defendants and each of them in the sum of $309.40, and costs. Defendants appeal.

It is first contended that the court erred in admitting parol evidence to vary the written contract. This is based on the fact that the written contract, made a part of the complaint, recites that there are $200, unpaid balance of the contract price, payable in monthly installments of $25, beginning May 5, 1916, while it was further alleged that the sale price of the piano was $425, but that appellants were given credit for $225, in consideration of a cash payment of $75; that $5 was paid when the contract was signed, with a promise to pay the balance of $70 on the following day. The evidence showed that the written contract was drawn with the understanding that the actual price of the piano was $275, of which sum $75 was to be paid at once, and the remaining $200 in installments as in the writing provided. This evidence in no way tended to vary the legal effect of the written contract. It merely explained the consideration, thus falling within a generally recognized exception to the rule against varying a written instrument by parol. Jones, Blue Book of Evidence, § 468; Don Yook v. Washington Mill Co., 16 Wash. 459, 47 P. 964; Van Lehn v. Morse, 16 Wash. 219, 47 P. 435. Moreover, the recital that $225 had been paid amounted to nothing more than a receipt, and as such was open to explanation by parol testimony. Gronning v. Elliott Bay Mill & Lumber Co., 61 Wash. 676, 112 P. 937.

In this connection it is further argued that, inasmuch as the written contract shows that the first payment was not due until May 5th, the action, which was brought on April 25th, was premature. We find no merit in this claim. The contract gives a right of action for the whole purchase price in case of failure of purchasers to perform any of its conditions. One of the conditions being an initial payment of $75, failure to pay that sum would be an immediate breach, in case of delivery and acceptance of the piano, and would warrant suit without waiting for a default as to subsequent installments.

The second contention is that the wife was not authorized by the husband to sign the contract, hence has no power to bind him or the community. The evidence shows that appellants were contemplating the purchase of a piano, and on April 5, 1916, visited many piano stores on a tour of inspection, and finally that of respondent, where they were favorably impressed with the offer of a Christman piano of the asserted value of $425 at a discount of $150, to be had on a cash payment of $75 and monthly installments of $25 each for the balance of $200. A form of contract was shown them, but the evidence is conflicting as to whether appellants then read it or not. Certain it is that they declined to sign it and close the deal. The husband testified that he said to the salesman:

'Well, if we decide on your piano, we can let you know.'

In this he is corroborated by the wife, who testified:

'We didn't make any arrangements to buy; we just looked around. * * * We didn't give Mr. Rosquist any special remark about buying it. Just think it over, and that is all we promised when we left him in the evening.'

Rosquist, a member of the respondent corporation, testified:

'They decided on a piano that night, and I wrote out a contract and the payments, and filled that out. And Mr. Nelson read the contract over, and I said: 'You had better fix it up to-night

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