Smith Sand & Gravel Co. v. Corbin

• Citation: 81 Wash. 494,142 P. 1163
• Decision Date: 16 September 1914
• Docket Number: 11194.
• Court: United States State Supreme Court of Washington
• Parties: SMITH SAND & GRAVEL CO. v. CORBIN.

142 P. 1163

81 Wash. 494

SMITH SAND & GRAVEL CO. v. CORBIN.

No. 11194.

Supreme Court of Washington

September 16, 1914

On rehearing. Affirmed.

For former opinion, see 75 Wash. 635, 135 P. 472.

ELLIS J.

The opinion of Department 1 on the first hearing of this case will be found in 75 Wash. 635, 135 P. 472. We restate the facts necessary to a discussion of what we now deem the decisive question. This is an action for damages for an alleged breach of contract. On July 29, 1909, by a contract in writing, the plaintiff agreed to remove all rock from the defendant's land in Spokane to a level of six inches below the grade of the adjoining street, and the defendant agreed to pay therefor at the rate of 50 cents a cubic yard. There was no express provision as to the time within which the work should be performed. There was no provision, either express or implied, as to what disposition the plaintiff should make of the rock when removed or as to whom it should belong. The complaint, so far as here material, set out two causes of action. The first merely demanded a balance of $3,188 claimed to be due for rock actually removed. The substance of the second was that between October 3, 1910, and March 24, 1911, the defendant gave the plaintiff several notices in writing demanding a removal of its machinery and equipment from the land, the last of which contained a formal declaration that the contract had become null and void and was rescinded by the defendant for unreasonable delay and failure of performance by the plaintiff; that in March, 1911 defendant took possession of the land, prevented the plaintiff from removing the rock, and, over the plaintiff's protests, removed all of the rock himself. It is then alleged:

'That, in addition to the sum of 50 cents per cubic yard, which defendant, by the terms of said contract, stipulated to pay plaintiff for the removal of said rock which, by oral understanding and agreement between the parties, was to become, when excavated, the property of this plaintiff, plaintiff would have been able to sell and dispose of said 13,000 yards of rock in a manner and at a price which would have enabled plaintiff to realize, in connection with the amount agreed to be paid to plaintiff by defendant, the net sum of 94 cents per cubic yard for the removal of said rock over and above all expenses incurred in connection with the removal thereof, and plaintiff alleges that it was at all times willing, able, and desirous of removing said rock and completing said contract according to the terms thereof, and that, had it been permitted to do so, it would have derived a net profit of 94 cents per cubic yard on each and every cubic yard of rock remaining on said premises, making a total of $12,220.'

The defendant, by answer to the first count, admitted a balance due to plaintiff, including interest, amounting to $1,440. The answer to the second count is in substance a denial of any violation of the contract in giving the notices, taking possession, and preventing a further removal of rock by the plaintiff, and a 'further answer and defense' to the effect that the plaintiff did not proceed with reasonable diligence and did not complete the removal of the rock within a reasonable time, as contemplated by the terms of the contract and the law applicable thereto, by reason whereof the defendant had the right to, and did by notice, terminate the contract and rightfully re-enter. The jury found for the plaintiff in the sum of $5,013, without segregation of the amount found on each cause of action. Judgment was entered against the defendant. He moved for a new trial. From an order granting this motion, the plaintiff appealed.

The court, in ruling orally upon the motion, gave three reasons for granting a new trial: (1) That he had committed error in his instructions to the jury touching the burden of proof; (2) that he had erred in permitting any testimony to be introduced on the second cause of action; (3) that, in any event, the verdict was against the evidence. The formal order, however, did not state the grounds. Even under our decision antedating this appeal, which was taken prior to the adoption of the rule to that effect, in Rochester v Seattle, Renton & Southern Ry. Co., 75 Wash. 559, 135 P. 209, we are at liberty to examine the whole record, and, if it discloses any ground warranting the granting of a new trial, the order appealed from must be affirmed.

Such an examination convinces us that the so-called second cause of action failed to state a cause of action. It pleaded an oral agreement, contemporaneous with the written agreement, and sought to put upon this oral agreement a construction which would vary the terms and legal effect of the writing. It is a rule of universal application that a written contract, complete in itself, or in so far as it is complete in itself, cannot be contradicted, explained, enlarged, varied, or controlled by extrinsic evidence of a different contemporaneous parol agreement. Allen v. Farmers' & Merchants' Bank, 76 Wash. 51, 135 P. 621. It is elementary that, if a contract specifies no time, the law implies that it shall be performed within a reasonable time. 9 Cyc. p. 611.

It is also well established that the legal effect of a written contract, though not stated in terms in the writing itself, but left to be implied by law, can no more be contradicted, changed, or explained by extrinsic evidence than if the legally implied effect had been expressed in the written terms.

'The legal effect of a written contract is as much within the protection of the rule which forbids the introduction of parol evidence as its language.' Barry v. Ransom, Adm'r, 12 N.Y. 462; La Farge v. Rickert, 5 Wend. (N. Y.) 187, 21 Am. Dec. 209; Creery v. Holly, 14 Wend. (N. Y.) 26; First National Bank of St. Charles v. Hunt, 25 Mo.App. 170; Thompson v. Ketchum, 8 Johns. (N. Y.) 190, 5 Am. Dec. 332; The Delaware, 14 Wall. 579, 20 L.Ed. 779; 2 Parsons, Contracts (8th Ed.) 551, 552 (star page); 17 Cyc. p. 570.

The legal implication of a reasonable time to perform the thing or do the act expressly undertaken in a written contract, which specified no time of performance, is as much within the protection of this rule as any other provision of the contract, whether expressed in terms or resulting in legal effect from the things expressed.

'The contract between these parties was in writing, but is silent as to the time when these frames and sash were to be furnished or delivered by the plaintiff. Upon the trial, parol evidence was admitted, over plaintiff's objection and exception, of a contemporaneous oral agreement that they were to be furnished and delivered as fast as needed in the construction of the building. Where a contract is silent as to the time of performance, the law implies that it was to be performed within a reasonable time; and, if the contract be in writing, parol evidence of an antecedent or contemporaneous oral agreement is inadmissible to vary the construction to be thus legally implied from the writing itself. Stone v. Harmon, 31 Minn. 512, 19 N.W. 88; Driver v. Ford, 90 Ill. 595. It was therefore error to admit parol evidence of a contemporaneous oral agreement to establish a time for delivery different from that which the law would imply from the writing itself.' Liljengren Furniture & Lumber Co. v. Mead, 42 Minn. 420, 423, 424, 44 N.W. 306, 307, 308.

See, also, Driver v. Ford, 90 Ill. 595; Self v. King, 28 Tex. 552; Stone v. Harmon, 31 Minn. 512, 19 N.W. 88; Blake Mfg. Co. v. Jaeger, 81 Mo.App. 239; 2 Parsons, Contracts, (8th Ed.) 661 (star page.)

Even...