Nichols v. Oppermann

• Decision Date: 11 July 1893
• Citation: 34 P. 162,6 Wash. 618
• Parties: NICHOLS ET AL. v. OPPERMANN ET AL.
• Court: Washington Supreme Court

34 P. 162

6 Wash. 618

NICHOLS ET AL. v. OPPERMANN ET AL.

Supreme Court of Washington

July 11, 1893

Appeal from superior court, Pierce county; Frank Allyn, Judge.

Specific performance by J. M. Nichols and L. E. Handley against Albert Oppermann and others. From a judgment for defendants plaintiffs appeal. Affirmed.

Hoyt J., dissenting.

Taylor & McKay, for appellants.

Doolittle & Fogg and John P. Cass, for respondents.

SCOTT J.

Plaintiffs allege that they had entered into an agreement with certain of the defendants for an exchange of lands, and they brought this action to enforce a specific performance. Judgment was rendered for the defendants, and the plaintiffs appealed. Deeds had been prepared and signed by the respective parties and deposited with John P. Cass, one of the defendants, who was the general legal adviser and attorney for the others. The complaint did not allege whether the contract was in writing or by parol. The answer of the defendants denied the allegations of the complaint, and, by way of affirmative defense, the answer of some of the defendants admitted that there had been negotiations between them and the plaintiffs looking to an exchange of lands, but denied that they had ever agreed upon the terms thereof. It was claimed that the deeds had been prepared as a matter of convenience, and to avoid unnecessary delay in case said defendants should agree to such exchange after an inspection of the lands to be conveyed to them by the plaintiffs. There were other conditions also connected with said negotiations, which it will be unnecessary to notice. Appellants complain of certain rulings of the court preventing them from offering testimony to show the various talks and conversations of the parties prior to but leading up to, the signing and deposit of the deeds. The general proposition is admitted that an oral contract to convey real estate cannot be enforced, but it is claimed by appellants that in this instance the defendants waived the point that the contract was not in writing by virtue of their pleadings. We are unable to agree with appellants' contention in this regard. The contract alleged was squarely denied in the answers, and in the affirmative matter set up it was not admitted that any contract had been made. It is further contended by the appellants that the deeds were left with said John P. Cass, to be delivered to the appellants upon the satisfaction of a mortgage by them upon the land to be conveyed to defendants, and that, as the deeds were signed and deposited with a third person, parol proof might be made of the contract otherwise. The condition upon which a deed is delivered in escrow may rest in and be proved by parol. This is as far as the rule extends, and it presupposes a valid contract to convey. Our statute (volume 1, § 1422) reads: "All conveyances of real estate, or of any interest therein, and all contracts creating or evidencing...