McDonald v. Wyant, 23234.

• Decision Date: 03 March 1932
• Docket Number: 23234.
• Citation: 8 P.2d 428,167 Wash. 49
• Parties: McDONALD et al. v. WYANT.
• Court: Washington Supreme Court

8 P.2d 428

167 Wash. 49

McDONALD et al. v. WYANT.

No. 23234.

Supreme Court of Washington, En Banc.

March 3, 1932

Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.

Action by Malcolm McDonald and another, copartners as McDonald &amp Eastman, against James H. Wyant. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded, with direction.

E. D Germain, of Longview, for appellants.

Fisk &amp McCarthy, of Longview, for respondent.

MILLARD J.

This action was brought to enforce payment of a real estate broker's commission. The trial of the cause to the court resulted in judgment in favor of the defendant, the court finding that the defendant never received any money '* * * on account of the purchase price of said premises and received no money whatsoever out of the sale of the timber removed therefrom by the said Fred T. Hall. * * * That at the time said contract was executed * * * it was understood and agreed by and between the defendant and the said W. E. Blair that said sum of $600.00 was to be paid out of the proceeds derived from the sale of said premises at the rate of $1.00 per thousand feet as the timber therefrom was cut and removed by the said Fred T. Hall, which agreement was thereafter reduced to writing, and that the right of the said Blair to any compensation for such services was entirely dependent upon the receipt of the purchase price by the defendant.'

The plaintiffs appealed.

The facts are as follows: A tract of timber land in Cowlitz county was, pursuant to an agreement with the respondent owner, sold March 27, 1929, by W. E. Blair, a real estate broker, to Fred T. Hall and wife. The sale contract provided that Hall et ux., the parties of the second part, should pay the purchase price to Wyant, the party of the first part, in the following manner: 'Parties of second part are to remove all merchantable timber on premises, commencing at southwest corner and continue until total amount has been removed, all timber to be removed within six months from date hereof, to market same and all payments to be made through said bank, said bank to credit party of first part with $3.50 per thousand B. M. for all timber marketed until full purchase price has been paid; in case the returns from timber should be insufficient then it is hereby understood and agreed that any remaining balance shall be paid within 1 year from date hereof, plus $100.00 per month for time party of first part stays on premises and supervises planting and harvesting of crops, parties of second part to board party of first part until crops are harvested, party of first part to have privilege of checking sales of timber at all times.'

When the sale contract was signed by the parties, respondent Wyant signed the following indorsement on the contract: 'I hereby ratify and confirm the employment of W. E. Blair, real estate broker, to find and procure purchaser for my property and in consideration of services performed in bringing about the foregoing sale, I hereby agree to pay him the sum of six hundred dollars ($600.00).'

On April 1, 1929, five days subsequent to the sale, Wyant paid to Blair $100 for which Blair delivered to Wyant a receipt reading as follows:

'$100.00

April 1, 1929.

'Received from James H. Wyant One Hundred and no/100 dollars part pmt. Commission on sale of farm W 1/2 SW 1/4 and S 1/2 N.W. 1/4 Sec. 22. T. 10 R. 1 E. W. M. Bal. of $500.00 to be paid at rate of $1.00 per M. as logging is done.

'(Signed) W. E. Blair.'

Approximately three hundred thousand feet of logs were removed from the land and sold. For this timber the respondent, up to the time of the trial of this cause, had not received payment from Hall. In addition, two hundred thousand feet of logs were cut and left on the land. The marketing of this lot of timber was prevented by the respondent, who successfully prosecuted an action to enjoin removal of the timber and to cancel the contract because of Hall's failure to pay for logs cut.

Blair assigned to the appellants his interest in the commission for making the sale. Upon the refusal of Wyant to pay the broker or the broker's assignees, the assignees instituted this action to recover the balance due of five hundred dollars.

Appellants contend that the trial court erred in finding that respondent's promise to pay the broker's commission was contingent upon the receipt by the respondent of the purchase price from the vendee as the timber was marketed, and that the trial court erred in permitting the respondent to testify that he and the broker made an oral agreement to that effect prior to the execution of the sale contract between Hall and respondent.

The written promise of Wyant on March 27, 1929, to pay Blair $600 was an unconditional promise. The court erred in admitting the testimony as to the prior or contemporaneous oral agreement which depended upon a condition subsequent--the cutting and marketing of the timber. The written instrument is free from ambiguity, and respondent does not claim there was any fraud or mistake, hence parol evidence of prior or contemporaneous agreements is inadmissible to show the intentions of the parties were different from what is expressed in the writing.

'The ruling that parol evidence is not admissible to contradict a written contract usually is spoken of as a rule of evidence. It is a rule of evidence, but it is a rule of evidence founded on the substantive rights of the parties, namely that where the trade finally struck between the parties is put in writing the writing sets forth the trade which is struck. For that reason evidence that during the negotiations the plaintiff agreed by word of mouth that the defendant should be its sole 'agent,' although not objected to, is not of consequence.' ...