Morango v. Phillips
| Decision Date | 03 May 1949 |
| Docket Number | 30791. |
| Citation | 205 P.2d 892,33 Wn.2d 351 |
| Court | Washington Supreme Court |
| Parties | MORANGO v. PHILLIPS et al. |
Department 2
Action by George Morango against Richard Phillips and Jane Doe Phillips, his wife, J. H. Powell and Elsie Powell, his wife and R. E. Farrell and Marie Farrell, his wife, individually and doing business under the firm name and style of Phillips & Powell, for breach of contract to complete remodeling of a dwelling house, wherein defendants filed a counterclaim. From a judgment for the plaintiff, defendants appeal.
Reversed and remanded.
Appeal from Superior Court, Skagit County; Willard L. brickey judge.
Alden B. Whelan, of Coupeville, and Welts & Welts of Mount Vernon, for appellants.
Chavelle & Chavelle, of Seattle, for respondent.
This action was brought by George Morango against Richard Phillips, J. H. Powell, and R. E. Farrell, and their respective wives, individually and as copartners doing business under the name of Phillips & Powell, to recover damages arising out of an alleged breach of a written contract to complete the remodelling of a dwelling house. The court made findings of fact and conclusions of law and entered a judgment awarding the plaintiff a money recovery. The defendants have appealed from the judgment.
The theory upon which the respondent proceeded at the trial was that on December 6, 1946, he made a written contract with appellants to have a dwelling house remodelled according to plans which had been drawn for the sum of $7,000, upon which he had paid $3,851; that after some performance the appellants breached the contract and refused to complete the remodelling work.
The defense and counterclaim presented by appellants was that in the latter part of September, 1946, the respondent employed them to remodel his dwelling house on a cost plus 16% basis; that appellants performed work and furnished materials up to December 6th, at which time the respondent and appellants made the written contract above referred to whereby the appellants promised to complete the remodelling of the house for the sum of $7,000 and receipt of $3,151 was acknowledged; that the written contract was not followed by respondent in that he took charge of the building operations, made changes therein, increased the labor to be done and material to be furnished and interfered with the workmen and discharged some of them; that appellants complied with the orders and requests of respondent in deviating from the written contract; that some time about the first part of March the respondent breached the contract by ordering the appellant to cease further performance thereof. The appellants claimed they were entitled to be compensated for what they had done and performed pursuant to the verbal contract between October 2nd and December 6th on a cost plus 16% basis; also the reasonable value of services performed and materials furnished subsequent to December 6th and damages for breach of the written contract.
The trial court adopted the theory of the respondent and allowed him a recovery of $5,731.31.
During the progress of the trial counsel for respondent objected to the introduction of any testimony tending to prove the existence of a verbal agreement for the furnishing of labor and materials in connection with the remodelling of the dwelling house between October 2nd and December 6th on a cost plus 16% basis, the basis of the objection being that the reception of such evidence would be a violation of the parol evidence rule. The court was of the opinion that the effect of such parol evidence would be to change, alter and vary the terms of the written agreement made December 6th and rejected the offers of proof. The trial was limited to a determination of the rights, duties and obligations of the parties under the written contract. At the close of submission of evidence by appellants the court struck the parts of the answer relating to the verbal agreement.
The question presented is whether any verbal agreement which the respondent and appellants had for services to be rendered and materials to be furnished on a cost plus 16% basis between about October 2nd and December 6th became merged or integrated into the written agreement of December 6th, or whether the parties operated pursuant to a separate and distinct verbal agreement wholly independent of the written agreement.
We are of the opinion that a verbal agreement to perform services and materials in the reconstruction and remodelling of a dwelling house on a cost plus basis and which was partly performed would be entirely different from a written contract to complete such reconstruction and remodelling on a lump sum basis. There would be no inconsistency between such contracts. The performance of such a verbal agreement would continue until the work was completed or the parties by mutual consent terminated the same. The performance of one contract would take up where the other left off. It seems very clear to us from the pleadings and the offers of proof made by appellants that the respondent and appellants could have had two separate and distinct contracts, one of which was verbal and the other written, each independent of the other and each supported by its own consideration, even though the ultimate objective of the two contracts was the reconstruction and remodelling of the same dwelling house.
The applicable rule of law to the situation presented is that although an agreement between parties is reduced to writing, the law does not merge into such writing a prior or contemporaneous verbal agreement between the same parties which is distinct from and not in conflict with the writing. Driver v. Galland, 59 Wash. 201, 109 P. 593; Mapes v. Santa Cruz Fruit Packing Corp., 26 Wash.2d 145, 173 P.2d 182; Moe v. American Ice & Cold Storage Co., Wash., 190 P.2d 755; Moran Brothers Co. v. Pacific Coast Casualty Co., 48 Wash. 592, 94 P. 106; 3 Jones Commentaries on Evidence, 2d Ed., Sec. 1490; 5 Wigmore on Evidence, 2d Ed., Sec. 2430.
We shall not analyze or review the foregoing cases. They are factually different from the case Before us, but are cited to demonstrate that we have recognized and applied the foregoing rule to situations where it was claimed that a prior verbal agreement had become merged in a subsequent written agreement between the same parties and had decided that there was not such a merger and parol evidence had been properly received to prove the terms of the verbal agreement.
In the case of Mapes v. Santa Cruz Fruit Packing corp., supra, we said [26 Wash.2d 145, 173 P.2d 188]: 'In the final analysis, the question always resolves itself down to this:
We also referred to the rule in Moran Brothers Co. v. Pacific Coast Casualty Co., supra, in the following language [48 Wash. 592 94 P. 108]: ...
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