Reiner v. Crawford

• Decision Date: 03 January 1901
• Citation: 23 Wash. 669,63 P. 516
• Parties: REINER v. CRAWFORD.
• Court: Washington Supreme Court

63 P. 516

23 Wash. 669

REINER v. CRAWFORD.

Supreme Court of Washington

January 3, 1901

Appeal from superior court, Lincoln county; C. H. Neal, Judge.

Action by George J. Reiner against William A. Crawford. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Winston & Winston and Myers & Warren, for appellant.

H. N Martin, for respondent.

FULLERTON, J.

This is an action brought by the appellant against the respondent to recover damages alleged to have accrued by reason of the failure of the respondent to comply with the terms of a written contract, by the terms of which the respondent agreed to sell and deliver to appellant certain shares of stock in the Deer Trail No. 2 Mining Company. The instrument sued on was executed at Davenport, Wash., and the shares of stock at that time were in the hands of the respondent's agent at Spokane, Wash., who had authority to sell and contract for the sale of the same. The respondent in his answer to the complaint admitted the execution of the instrument, but denied that it ever became operative, averring that it was delivered to appellant upon the express understanding and condition that it was not to take effect if the respondent's agent at Spokane had sold the stock, or entered into a contract for the sale of the same, prior to the time the appellant reached Spokane and notified the agent of the contract of purchase; further averring that in fact the agent had contracted to sell the stock on the day preceding the execution of the writing sued on, and that the shares of stock were delivered to the purchaser prior to the time appellant reached Spokane. Issue was taken on the answer, and a trial was had before the court and a jury resulting in a verdict and judgment for the respondent.

On the trial the court permitted the respondent, over the objection of the appellant, to prove by oral evidence the conditional delivery of the writing. This is assigned as error, being, it is contended, in violation of the rule that parol evidence is inadmissible to contradict or vary the terms of a written instrument. But we think the rule invoked is not applicable to the question here suggested. To show that a writing in the form of a contract was delivered to take effect on the happening or the not happening of a condition and that the condition on which it was made to depend has happened or has not happened, as the case may be, does not in any true sense contradict the terms of the writing or vary their legal import, but is, rather, the showing of a separate agreement, constituting a condition precedent to the attaching of any obligation under the writing. In other words, while parol evidence is inadmissible to vary or contradict the terms of a written instrument, such evidence is admissible to show that a writing in the form of a contract never became operative as a contract. This principle is generally approved by the authorities. Whart. Ev. § 927; Wilson v. Powers, 131 Mass. 539; Ware v Allen, 128 U.S. 590, 9 S.Ct. 174, 32 L.Ed. 563; Burke v. Dulaney, 153 U.S. 228, 14 S.Ct. 816, 38 L.Ed. 698; Benton v. Martin, 52 N.Y. 570; Reynolds v. Robinson, 110 N.Y. 654, 18 N.E. 127; McFarland v....