Welever v. Advance Shingle Co.

• Decision Date: 14 March 1904
• Citation: 34 Wash. 331,75 P. 863
• Parties: WELEVER et ux. v. ADVANCE SHINGLE CO.
• Court: Washington Supreme Court

75 P. 863

34 Wash. 331

WELEVER et ux. v. ADVANCE SHINGLE CO.

Supreme Court of Washington

March 14, 1904

Appeal from Superior Court, Snohomish County; John C. Denney, Judge.

Action by Charles P. Welever and wife against the Advance Shingle Company. Judgment in favor of plaintiffs, and from an order granting a new trial they appeal. Affirmed.

McMurchie & Bundy and A. M. Abel, for appellants.

G. M Emory and McGuinness & Miller, for respondent.

HADLEY J.

Appellants brought this action to recover damages from respondent for alleged wrongful cutting of timber upon appellants' lands, and for the value thereof. Respondent answered setting up facts under which it claims to have been the owner of the timber, with license to remove it from the land. A trial was had before a jury, and a verdict was returned in favor of appellants for the sum of $600. Respondent moved for a new trial, and the same was granted on the ground, as stated in the court's order, that the evidence was insufficient to justify the verdict, and that it is against the law. This appeal is from said order, and it is assigned that the court erred in setting aside the verdict and in granting a new trial.

For a time prior to December 3, 1900, appellant Charles P. Welever owned, jointly with others, a certain shingle mill, which was located upon the tract of land whereon stood this timber which is in dispute. On that date he executed a written bill of sale to M. J. McGuinness for all of his interest in and to the shingle mill, including, by special mention, the machinery, dry kiln, and all buildings connected with the mill. McGuinness was the transferee, in trust only, for certain others who were the real purchasers, and who caused the transfer to be so made and held until they could incorporate the respondent company. Said purchasers afterwards became incorporators of the respondent company and the said interest was then transferred to it. In said bill of sale no mention is made of any transfer of timber but it is claimed by respondent, and there is considerable evidence to the effect, that said appellant took the mill purchasers over the land, showed them the timber, and urged, as an inducement for the purchase of the mill, that the timber would be transferred to the purchasers. There is also evidence that said appellant represented to the purchasers that he and his associates were the owners of the timber; that it was agreed throughout the negotiations that the timber should pass to the purchasers; and that, but for such representations and agreement, the purchasers would not have bought the mill. There is also evidence that when the purchase was made the purchasers assumed and agreed to pay certain obligations of Welever and his associates, among which was a balance due from the latter to their own vendor for the purchase price of this timber, and that respondent did pay said sum to the former owner of the timber on account of said obligation of Welever and his associates.

Appellants urge that, inasmuch as no mention is made of the timber in the written bill of sale, it was therefore improper to admit any testimony bearing upon that subject, for the reason that its effect was to contradict and vary the terms of the written instrument. If appellants' position is correct it follows that the court should not have considered any of that evidence in passing upon the motion for a new trial. We believe the evidence admitted in this case does not come within the classification of parol evidence which contradicts or varies the terms of a written instrument. It is true, the bill of sale is complete in itself, but that fact is not inconsistent with the parties having entered into a verbal agreement at the time of the execution of the writing touching a subject not embraced in the writing. 'Again, the parties to a written agreement which is complete in itself may at the time of its execution or previously have entered into a collateral parol agreement concerning some matter on which the instrument is silent, and the rule does not preclude the proof of such collateral agreement, provided no attempt is made to vary or contradict the writing.' 21 Am. & Eng. Enc. of Law (2d Ed.) 1094. The decisions of many states are cited in support of the above. 'The written contract (Exhibit A) does not refer to the matter of the sale of the old machine, and the evidence as to the rescission of that sale...