*1 January En 34535. Banc. [No. 1960.] Rodney Lagerquist A. et al., Respondents, Becker Inc., Appellant. 1
Brothers, 1Reported in 348 P. 423. *2 Towne, of coun- W. (Vernon Barnett & Towne
McCann, for sel), appellant.
MacDonald, Hoague Bayless, & respondents. below, defendant ap- Foster, J. Appellant corporation, performance specific from a judgment requiring peals alternative, the or, a street an to oral agreement pave thereof. the cost to pay that, under contention gravamen appellant’s rule, earnest-money the receipt pre-
the parol the extrinsic of an oral to proof pave cluded Rochester, in Barber v. Quite recently, (2d) Wn. street. the 691, 328 P. we reviewed and concluded (2d) subject not an evidence rule was exclusion- that so-called but, on contrary, device basic tenet sub- ary court’s to all trial consider duty stantive law evidence, either written, extrinsic oral or in order relevant if the embraced the writing determine entire agreement to does, it If is the writing sole memorial parties. it is agreement, otherwise not. A detailed statement of the evidence is required the claimed errors. understand a tract corporation of land ad- acquired Thereafter, to the of Seattle. it city subdivided said jacent building tract lots offered the same into for sale. To lots, the sale of the appellant advertised that promote It the streets. for this employed, would dis- purpose, and an advertising elaborate illustrated brochure. play Moreover, found respondents’ purchases were them made in direct by appel- response promises lant’s agent paved. would question brokers agents
Sales of the were made property gave which, varying who while earnest-money receipts form, all contained a recital that there were no agreements not contained in the receipt.
The trial court further found that neither contem- party plated that covered entire earnest-money receipt agreement between them.2
It is
fitting
say that
function of an
primary
earnest-money
is to
receipt
satisfy the statute of frauds.
In Gronlund Andersson,
38 Wn.
P. (2d)
although
action for
fraud,
court was
dealing
an earnest-money
receipt
contained the precise words
relied
here, and held
that such words had nothing
to do with the
application
rule
parol evidence
an oral contract
relating
improvements. We there said:
“ .
*3
. There seems to be some
that,
suggestion
since
the earnest-money receipt
the
given by
sellers to the buyers
‘There
are no verbal or other agreements
contains the
words,
or
modify
this
agreement,’
it
was a violation
affect
of the parol evidence rule to introduce evidence concerning
the statements of the real-estate agent as to the sufficiency
of the water
Even were the
supply.
clause
quoted
con-
tained
the
sale,
in
contract of
this contention would be
merit;
without
quite
for,
the
where
issue is
a
whether
fraud,
contract
was
the
procured
doctrine that
or
parol
other extrinsic
contradict,
evidence
to
inadmissible
vary,
or
the
of a
terms
written contract
explain
inapplicable.
Annotation,
A. L.
13.
See
56
R.
Parol
of
evidence
false
and fraudulent
one
inducing
to enter
into
representations
a written contract
is admissible
the con-
notwithstanding
recital
that
there
express
tract contains
have been no
or
all oral
shall be
representations,
representations
Rice,
Dieterich
Wash.
receipt, was purposes, than a enter contract to a contract of within into sale concerning time. An the adequacy specified a con- the water would not such vary modify supply of and in have whatever any sense, nothing tract would fact (Additional to do with it.” italics ours.) Whaley v. Milton Const. expressed A view was similar & Co. Supply (Mo. S. W. 23: App.),
“It is next that the money execution of the earnest urged act was the final of the the terms receipt expressing parties their and and agreement, of that all prior negotiations therein, were and for that reason the agreements merged sued without violating contract on could be established rule. the parol rule to has the facts in
“The referred no to application case. The contract between the was original parties the earnest that the execution of oral, and does not appear intended as a reduction of that entire was money receipt the re- money of earnest writing. contract to purpose limited to and terms were bargain, bind ceipt relation It contained nothing terms the sale. to to the con- that had with do to to acknowl- merely house. Its purpose struction edge receipt money, property the earnest identify the terms of the sale and the conveyed, specify the con- Nor were terms of closing. place time and building the character reference with tract matter of sale subject related constructed so under to require, conveyance property con- money in the earnest evidence, their inclusion could be enforced. Oral proof they tract before of house kind respect the contract terms of to, or con- vary, add way in no tended contracted Asbury, Scott v. Mo. money contract. tradict earnest McDowell, Mo. 1131; App., Corn v. S. *4 198 W. App., S. W. 210, 1068; 182 S. W. Bell, App. 193 Mo. 235; v. Bowers v. 891; 2d Eggimann Mo. 51 S. W. Riedel, App., v. Hart Realty v. 478; Dubinsky Meyer 240 S. W. Houck, Mo. App., Mahn, v. 208 Mo. 1106; 2d Morris 133 S. W. Mo. Co., App., 231 Beck, v. Mo. 827; App., Heath W. 575, 235 S. App. W. 657.” S. not dealt was that the matter was
Indeed, the objection is: objection Counsel’s earnest-money receipt. with .the 429 re- testimony “Mr. Towne: I to Honor, Your object, to the other that done in addition garding things were be agreement.”3 matters in the earnest money incorporated It of the terms of sale would be indeed if all strange The en- were in an earnest-money receipt. required tire revised. real estate would have to be selling method “ . . The rule not exclude does parol evidence of an oral could not agreement parties reasonably be in the written expected embody agree- ment.” 574, 55 Am. Jur. 98. 573, § a contract be in is in
Where
writing
required
collateral
refer
writing,
independent
with
agreement
ence to the same
matter
be in
where
subject
may
parol
the statute does not
it to
Brumley
require
writing.
Miller,
v.
2
Shannon’s Cases 454 (1877); Lewis v. Turnley,
197,
97 Tenn.
The so-called
evidence rule
an exclusionary
device
prevent
the introduction of oral
testimony.
test
primary
it
applying
was stated in Gaffney v.
O’Leary, Wash. 171,
“The first
is whether
in
question
the entire contract of the
parties
embodied
the order referred
therefore
was not
to be
subject
supplemented
oral
testimony.
that,
well settled rule is
it
where
appears
only
part
aof
contract
is in writing,
not in
writing may be
proved by
testimony
so far
it
is not inconsistent
Interstate
written portion.
Co.
Engineering
v.
Archer,
629,
64 Wash.
in Bond v. P. 196: Wiegardt, (2d) 41, (2d) 36 Wn. 216 are
“We here concerned evi- mysterious parol rule, dence character of has tradition- recondite authorities a sore trial for even such eminent ally provided that, it are darker things who wrote of ‘Few Thayer, A this, Pre- (Thayer, than fuller of subtle difficulties’ or Law, on Evidence at the Common liminary chapter Treatise ‘the it as most and who described 10, 390), Wigmore, p. (9 field of Evidence’ in the whole subject discouraging 3, ...” 2400). Evidence (3d ed.) § on Wigmore the earnest-money time of the execution of At the if not partly, wholly, executory the contract was receipts, in Nielsen v. Northern sides, that our decision on so both 171, 1031, 286 P. controls: (2d) 47 Wn. (2d) Corp., Equity on money agreement executory the earnest “Since additional consideration was neces- no new or sides, both La- agreement enforcible. the modification to make sary 621, 20; 217 Pac. Hunters Hubbard, 125 Wash. v. Plante 377, 225 Co., Wash. Packing Carstens Co. v. Cattle P. Strom, (2d) 37 Wn. 68; Meyer Pac. 218.”5 on that ground our decision need not rest
But we Beach, of respondents least in the case for at alone seller, was never signed earnest-money receipt evidence rule could parol Beaches’ case so that no contract. there was written because apply not possibly that, is the matter argument because Appellant’s was not mentioned question the street of paving evidence rule precludes earnest-money receipt, parol collateral street. aof proof' main current of to the decisional law contrary both Such contemporaneous parol inducing a is the . where . 5“. contract, parol agreement moving or where a of written cause contract, appears for a written and it consideration forms on the faith of was executed contract contract written that the McGregor admissible. . .” representations, then such Co., Bank & Trust 180 Wash. P. Farmers-Merchants v. First (2d) 144. country England.6 and in The law is summarized following quotation § from 27 L. R. C. 265: “ grade Evidence an oral build may city put a street and to cause water into given buy fronting show inducement to lot on *6 independent street, as such an collateral one is which need not be included in the deed.” significant Wiswall,
One of the cases is 183 Mass. Drew supreme 554, 67 666, N. E. in which the court Massa- chusetts held: by plaintiff’s
“It is true that the title the land comes deed from defendants, the which is silent as to such agreement. writing The rule in that contract cannot be by stipulations added to or varied the introduction of oral agreements, contemporaneous or execution, made before with its by holding is violated that the contract proved by plaintiff merged the was not in the deed but independent separate, though and the sale of the land building and the house furnished the consideration which ” supported. it is many enforcing
Illustrative of the cases collateral oral improvements purchase contracts for made to induce the property of real 250, is v. Jerd, 129, 102 Vt. 146 Atl. Roof plaintiff L. 68 A. R. 235. There the sold in lots an unde- veloped Sarasota, tract of land near Florida. To induce purchase orally promised the defendant to lots, two he was opened, that streets would be laid, sidewalks water mains lights provided. and extended, sewers and electric The purchased defendant the two lots and executed notes for purchase unpaid price. upon balance In a suit purchase, the notes and the contract to the defendant coun- may given parol agree 6“Under certain conditions evidence be of a contemporaneous touching subject with and ment matter of a writ agreement as to wholly ten and written is silent. necessary parol agreement that conditions are shall be en tirely agreement, collateral written it that shall not contradict agreement, proved strictly. and that it shall be written readily agreement will more enforced if it was an inducement entering agreement. The.parol agreement, into the written moreover, required be such as is the Statute of must not Frauds or otherwise Halsbury’s England writing.” (3d ed.) 11 Laws 657. § terclaimed the oral the im- upon respecting but evidence in of the counterclaim provements, support However, under the rejected parol evidence rule. and, court of its Vermont reversed supreme opinion, declared: this rule is familiar
“Though very courts, apply- it they so-called have much ing exceptions, per- been is, and have reached plexed conflicting results. Sure it rule does not exclude or contem- parol proof prior to, of, oral contract that is collateral poraneous independent with the contract, though and not inconsistent written general grows relates to the out subject-matter same 67, 71; Randall, transaction. Green v. 51 Vt. same Willard, 44, 48; 44 Vt. Cook v. 98 Me. Littlefield, Buzzell v. 899, 901; Atl. 10 R. C. L. 228. It all how depends Williston, bound to the closely Contracts, writing. the oral contract is too, It said, policy acting 637. § Y. Lath, Mitchill v. N. for consideration. cases, as will hereinafter appear, N. E. Our 646. own the rule. *7 construing liberal have been very relied this be- by the agreement “That defendant rule which the does not of contracts to the class longs to not in the way no It does affect have doubt. we apply, force or effect. merely It impair contract written of the not shown undertaking part plaintiff on the an shows it and of it. independent but collateral the writing, by that contract of purchase two is the the The bond between promise only. of the consideration the was interesting are and especially cases Massachusetts “The v. Cheevers, In McCormick connection. this instructive was for the filling contract 262, 124 Mass. 108, N. E. 156 Mass. 30 Cobleigh, v. In Durkin sold. land 436, S. R. Cole v. 162 270, Hadley, 32 A. A. L. R. 474, 17 Wiswall, Drew 183 279, and v. Mass. E.N. 579, 39 Mass. were to a grade 666, agreements the oral E.N. 554, oral agreement 119 Mass. Dooley, v. Carr In street. of these the oral cases, In each a sewer. to construct was that contract ground on sustained was by parol. be shown Anderson and could independent was N. C. 71 S. E. Corporation, American Suburban the case in hand resembles (N.S.) A.R.L. 221, 36 had a tract selling There, corporation closely. very were being into lots. These up had divided it land a that purchaser agent promised This agent. an by sold lots, he would buy corporation if would certain of these sidewalks, them, a car in granolithic build line to put main, other on improvements extend the water and make an way The and made made, by the tract. sale was make good contract. The failed to corporation executory have had a But there agent the rather seems promise. in that kind sense of honor for one engaged unusual refused to an for when the per- corporation occupation, form, he an from the deluded purchaser, took assignment It held that and sued the was corporation. himself it that oral contract was binding upon corporation, contract, that could and was of the written independent ...” by proved parol. the cases were reached in collected Similar conclusions in the margin.7 this confronted with England
The court of appeal Co., Land v. Kinmell Bay in Jameson identical problem of that case 47 Times L. The shows: Rep. (1931). report “An their agent, orally estate company, promised road, a that a marked intending purchaser on building plot a and access to the would plot, shown to him plan giving a ready them and for use within be constructed reasonable time. on the purchaser Relying promise, entered a purchase, into written plot to him.” duly conveyed of the oral agreement. sued for the breach plaintiff held: “ . did not form that the oral promise contract, was a contract but separate purchase, evidence could be without given contravening of its terms vary rule not be may given that parol and . a written agreement, provisions road, from any conveyance construct apart *8 run, intended it was to land over which land other disposition a for sale or ‘contract an action would consequently land’ and interest in Wood, 173; 355, Figg, 402, Luck v. 144 180 S. E. Va. 7Sale v. 164 Va. (Mo. App.), (2d) Meyer Dubinsky Realty 133 S. 178; v. Co. W. 132 S. E. (2d) 255; 156, 1106; Dent, Anderson v. 72 S. E. American 194 Va. Reed v. (Tex. Boyd 221; 131, Corp., v. Tucker Civ. N. 71 S. E. C. Suburban (Mo. App.), (2d) (2d) 202; S. App.), v. Riedel 51 W. Hart 288 S. W. App. 362, Sparhawk Gorham, N. E. Ohio 652. 891; v. it, lie oral, although without infringing provisions of s. 40 (1) Act, the Law of 1925.” Property
The the street in nowise conflicts with pave in anything entirely It is con- earnest-money receipt. Indeed, sistent with it. there was no reason to deal with at all in the subject statute of frauds receipt. the contract for required the sale to in writing, but there is no such requirement of the respecting paving street. No aspect evidence rule is here involved. It is impossible conclusion that escape a pave was material inducement question to the so respondents’ purchase, much so that the court found there was an oral contract to do so.
An additional contention must be dealt with. Appellant asserts that the agreement pave street was sale anof interest in land and void because it was not writing, and that a contract modifying one to be in writ- required must, likewise, ing be writing.
The answer to the contention is twofold: An (1) a street is not one for the sale and, interest in land consequently, may oral; and (2) where one has party fully performed his agree ment, the other party to assert estopped defense of the statute.
In v. Wiswall, Drew supra, the supreme court of Massa- chusetts held: specifically “ . . . The agreement the defendants under- certain took to build of these streets if the plaintiff would lots build house did buy not relate to or concern the sale of the interest of either in land, whether treated ” as house lots or streets. Cohn,
In
Tsuboi
40 Idaho
“. to make or pay
435 and materials on land is one for labor improvements of the operation for therefor and is not within payment ” . . . the statute. (r), 240, note (2d Halsbury’s England ed.) In 29 Laws of it is stated: on an agreement, obligation
“A collateral not involving land, depending an interest in acquire though either party interest, such operation acquisition L. (1875), v. Duke R. is the statute (see Angell not within 10 Q. B. 174; 12 Digest 127, 844; Boston v. Boston, [1904] A. ver A.; 128, 1 12 850 124, (where agreed K. B. C. Digest B. the B. certain land A. would pay if bally bought Adeane v. see also Erskine purchase-money); amount 841, followed 127, 12 756; 8 Ch. (1873), App. Digest 593, L. R. 47 T. (1931), v. Kinmell Land Co. Bay Jameson road); Re to construct A.; Digest Supp. C. Banks, (promise 362; 12 Digest v. Banks 56 Sol. Jo. (1912), Weldon refer made in 121, 799), although general stipulation found the contract must be subject-matter ence to in 31 castle-on-Tyne), Digest (Jones v. 2620; Lavington, Ltd. Crawford (1913), [1903] 57 Sol. Jo. White 1 K. B. 357; Digest Supp.). City 253, Rink 256, C. (New A.; dedicated already had The street been question and the conclusion law that “The use, court’s public of land not for agreements conveyance were paving and therefore this action is not barred the Statute of by but, indeed, no other only is not fully justified, Frauds” no than the is more judgment requires paving possible. dedicated. thus already one removes the case from Full party performance Restatement, Contracts, statute. operation in C. J. 251: 197. It is stated S. § § this said to Particularly . is be true where the “. performed has been to the completely agreement the provisions comes within of the statute, thereof which remaining merely performed pay- and the part act, of some or the money performance ment of ” put required writing. to do which S. 51 W. (Mo. (1932), Riedel App.), Hart v. states: plaintiffs “The evidence discloses that were induced to purchase appellants the land to erect electricity building a line for the transmission to the
respondents would, did, erect on said land. If the appellants fell frauds, within the statute of are position in no defense, to invoke such statute aas because *10 party it is a well-settled rule that, of law where one to provisions contract, a which is within the of the statute fully performed agreement, frauds, has his of the party other cannot avail himself of the In the in- statute. testimony plaintiffs, fully true, stant case performed of the contract. if their had complied provisions all the terms and with all the ” . . . upon ample The trial that in order court found evidence appellant to sell its advertised it would the streets lots agreed and that it do so. The record leaves no doubt to inducing major respondents pur- that was a factor this designed property. The chase such statute of frauds is appears prevent, promote, not to fraud. No valid reason agreement. releasing appellant from for irrespective num- relief the same of the Because the consequence prevailing parties, it is of that the no ber original plaintiffs were dismissed below. actions of two judgment is affirmed. The J., C. Mallery, Finley, Ott, Hunter,
Weaver, Hill, JJ., concur. (dissenting)—In my opinion, majority J.
Donworth, Washington abrogated parol rule in while has recognition present giving Furthermore, existence. to its “merger given clause” con- the so-called effect is no earnest-money agreements in- in each of the several tained summarily disposes majority this feature volved. quotation by agreements to, from, reference (2d) (2d) 38 227 P. 741 Andersson, Wn. v. Gronlund (1951), wherein we said: is whether contract was the issue
“. . where by or ex- or ex- procured trinsic the doctrine other fraud, vary, contradict, inadmissible to evidence is inapplicable. plain written contract of a the terms ” mine.) (Italics
437 case, in this been raised issue of fraud has Because no case the Gronlund in the proof, either or pleadings is, course, inapposite. three one of on some its decision rests majority an independent That the to pave
grounds: (1) modification it was an oral contract; (2) collateral or Equity Northern Nielsen v. contracts executory (citing con (1955), 1031 286 P. (2d) Wn. Corp., was not Beach contract (3) event trolling); these each of as seller. While signed by discussed, hereinafter the first appears grounds will Since this basis for this decision. the principal supply directly ques upon called pass has not been cases resolved that we turn to similar tion, it is appropriate discussion persuasive courts of sister states lack there is notable involved. That the legal principles refer in these decisions is best illustrated of harmony Jerd, R., A. L. wherein Vt. ence Roof *11 which is (the reasoning at 250, reported page Atl. is case of and majority), companion by adopted N. E. 68 A. L. R. 239 Lath, 247 N. Y. Mitchill 239. In is at result) reported page (reaching opposite latter case is more persua in the reasoning my opinion, and by of the former should adopted than that sive court. in ex-
Nowhere does the define the opinion majority with one undertaking tent of contractual appellant’s the nature of (although or all of the seven respondents in contract, question” speci- their i.e. “the street paving to mention Indeed, unnecessary finds it fied). majority the trial paved by the fact the street ordered to be the tract by appellant court lies outside entirely developed it. Nor is mention made of the by never owned and was the nine marital com- two of ruling permits ironic this action original plaintiffs munities comprising their causes dismissal of (after respective lawsuits lose their them to court), yet enjoy trial permits in the action entered other seven causes judgment the fruits as had though they prevailed. extent the same action is, effect, This nine actions, based on separate nine different alleged made promises same promisor to each of the original varying under circum- plaintiffs is, It therefore, stances. necessary to consider separately the facts each of the seven applicable remaining plaintiffs in order to arrive a correct at decision as to their respec- tive causes of action.
In the early owned corporation of farm acres land situated north approximately twenty tract, of Seattle in King county. This which was nearly rectangular was and subdivided into two shape, platted blocks, a total of containing eighty-two lots. It was named boundary “Green Arbor.” south Green Arbor 812 feet in and abuts the north length upon margin about street, which, at the time of west 105th Green Arbor was existing, but unpaved, public thoroughfare. was platted, in this litigation The nine lots involved front west upon 105th street. to, did, within
Appellant planned improve lots residential by erecting dwellings Green Arbor thereon. at homes were constructed various the de- These times as certain according to basic designs velopment progressed homes, architect. These together by appellant’s created which each situated, lot were the particular before, or after construction during, was com- either sold pleted. 7, 1956, August commenced nine married
This suit the nine who then owned lots Green plaintiffs, couples 105th street. Their on west set abutting complaint Arbor of action based causes upon alleged out nine separate separate promises por- breaches appellant’s *12 of their front lots. respective west 105th street tion of different facts his cause of alleged slightly Each owner causes related similar all nine trans- action, although alleged: All plaintiffs with appellant. actions lot in each sale development, “That as part each that the defendant purchaser promised the defendant such adjoining 105th Street lots and that West would pave for which of the consideration said was promise mine.) (Italics purchase price paid.” all “paved Plaintiffs further that alleged appellant Street,” West 105th streets in said except development refused to pave failed and that has since appellant of plain- requests the individual compliance tiffs. alter- (or, was for prayer specific performance the cost
native, paving) for measured damages, by alleged promises. appellant’s nine reference In answer, appellant incorporated contracts earnest-money respective receipt ex- communities, marital under which each of the plaintiff (and from a certain lot one,’ purchased cept found that (At trial, home the time of thereon). from immediate vendee of one couple purchased plaintiff ruled action, in the ninth cause of but as alleged appellant, ran was not one which pave that appellant’s action was dismissed. Hence, their cause of with the land. action was dismissed for total (fifth) Another cause of failure of proof.) defenses, affirmative addressed to all causes
In of its one alleged: action, appellant money agreement each earnest ... “. . into agreements entered only agreement the sole and respective and each of the plaintiffs, [appellant] contained the fol- money agreement earnest and each such lowing provision: “ which modify other agreements ‘There are no verbal or ” or affect this agreement.’ in their of this clause the existence Except admitting denied plaintiffs respective earnest-money agreements, defense. remainder of this affirmative of action have been the nine causes original Since two of if decision that six majority inherent dismissed, it is were likewise dis- of action seven causes remaining In be the same. other to them would missed, result as one have at least promised found to words, if appellant it would respondents seven remaining’ *13 of 812-foot section west 105th Arbor, Green abutting feet, for a width of all twenty-five benefit respondents will equally. has cited Barber majority Rochester, (2d) Wn.
691, 328 P. (1958) (in concurred), which I as sup- that it was the trial holding court’s “to con- porting duty evidence, sider all relevant extrinsic either written, oral or in order determine if the writing the entire embraced the agreement of parties.”
Of the course rule does not as an operate device the exclusionary conditional preclude reception of evidence to indicate that an tending instrument does not certain because, of This embody subjects negotiation. is so on Evidence Wigmore (9 Wigmore (3d ed.) 2430) § out: points
“ . . . the is whether intended inquiry writing was not, to cover a certain subject negotiation; of for if it was then the does not the transaction writing embody on and one subject; of circumstances of decision will be whether the one is so associated with the others that subject they fore, transaction, are in effect the same and there- of ‘parts’ all,
if reduced to at must writing they governed by be the same writing.
“In test for this three searching general inquiry, at least are of laid propositions capable being generally down: em-
“(1) negotiation Whether particular subject bodied the the intent writing depends wholly upon . . . parties thereto. “ (2) sought This intent must intent must always where §§42, 1714, (ante, 1790), namely, conduct sought of the circum- language parties surrounding stances. The document alone will suffice. What it was till intended to cover cannot be known we know there what whether certain being was to cover. question subjects covered, intended to be must were we negotiation compare and the can before we determine writing negotiations in fact covered. . . . were they whether intent, the chief and In most “(3) deciding upon index for the is found the circumstance judge satisfactory element ex- particular alleged whether or not at all .” trinsic is dealt negotiation writing. 1819, 633.) (Rev. ed.) § Contracts also, 3 Williston on (See, further states: Wigmore
“ as it does rule, resting . The application only made after a intent, can be properly parties’ terms of the transaction, kind of comparison document, and circumstances parties. transactions, it is rare *14 classes foregoing “Even a cannot justify of a case that the circumstances particular . individ- ordinary to the one. result special contrary unless the can have little value as precedents ual rulings is set forth; detail the documents and circumstances entire and an abbreviation of more to mis- likely them therefore of The of the in almost help. lead rule should application than determina- all left ... trial judge’s instances be 132, 2442. on Evidence (Italics mine.) Wigmore tion.” § a of for the sake impel brevity reasons sacrifice of These a detailed they require analysis specific clarity, to each seven causes respondents’ facts separate applicable and the claims action instruments which are the final consumated between repositories negotiations it and the respective respondents. evidence, the trial court found that: undisputed
Upon “Before of the homes W. 105th were facing Street sold, (Exhibit 3, defendant sign containing caused following: Arbor
‘Green Homes Restrictions Brand New Paving Brick Lots Large Quality $25,000 Homes [to] Builders.’) Quality Bros- -Seattle’s Lagerquist Green from near the entrance to Arbor West to be erected .” 105th St. sign originally be noted that the apparently must also
(It obliterated, so that contained a minimum which was price the word “to” $25,000.” finding ignores it read “to This brackets.) I have inserted above the sales to re- In early subsequent Becker, Beach, and brochure spondents Spelger, prepared by real-estate firm which held the exclusive for listing the sale of Green Arbor homes. Designed to pro- sales, mote this brochure, approved by contained appellant, architectural drawings, together with floor plans, several of homes. It also types contained a map the location showing of the various lots and homes thereon which com- had been pleted, were under construction, or had been On planned. other than the map, fact the south boundary west 105th street shown, was not no made attempt was distinguish it from the streets within Green Arbor. sentence following on the appears cover: “The streets will be paved, sewers and storm sewers in- stalled, and curbs and sidewalks will complete picture.” on the homes situated lots several purchased by were in various respondents stages at completion time Therefore, their made. agreements were factual background of the each several transactions with appellant’s out, chronologically set with the num- respondents *15 ber of each of causes of action respondents’ respective paren- thesized their names: following
Becker (1st): Earnest-money agreement dated Septem- had 13, 1952; ber house construction not then com- been menced. He entered of in February, into home possession 1953; officers, advised one of at the orally by was appellant’s time the was earnest-money agreement negotiated afterward, streets, 105th, that all would including west saw the above described did not see paved; sign; brochure (it had not been sidewalks and yet curbs were prepared); installed; assumed that west 105th street was of Arbor; learned 1954 (two years Green about September, earnest-money after that street would signing agreement) earnest-money agreement not be for paved; provided construction of house as follows:
“House to be built on is a of house at property duplicate Ave. 10504-9th Northwest constructed previously [a house]. red roman Of dark brick exterior. Window studded added in double partition garage.” dated Septem- Earnest-money agreement Beach (8th): that at substantially completed 24, 1952; house was ber done; to agree- prior minor remained to be time, things only 105th that agent sales west ment was advised by appellant’s one of confirmed by appellant’s this was would be paved, letter by appellant (per was officers; promised subsequently of “pave that would 13, 1952) of November % the full of Lot length width of West 105th St. trial court found.); Addition.” so (The Block Green Arbor had brochure; and sidewalks been did not curbs sign; saw see agree- installed; earnest-money there in this provision and lot. ment for minor additional modifications house dated October (7th): Spelger Earnest-money a few completed, only house then 2,1952; substantially done; was advised by appel- minor remained to be things that lant’s while west 105th agent negotiating purchase had not yet street would be brochure been paved; prepared; any changes no mention in be made in house. testified at and there- (Neither trial, Spelger respondents the record fails to show that he saw sign.) fore May 25,1953; dated house was (6th): Agreement Loussac time, at that a few substantially minor completed things done; remained to be before was advised one purchasing, by after officers street would be appellant’s paved; pur- another officers was advised chasing, appellant’s half saw sign; one would be saw brochure be- only paved; fore first learned in 1955 that west spring purchasing; earnest-money agreement stated 105th would not be paved; in detail the be completed appellant. improvements 1953; con- November dated Schimpf (4th): Agreement started; real- had not been yet appellant’s house struction *16 concerning nothing paving; advised agent specific estate brochure; writing, in and read provided saw sign; saw of house agreement, type earnest-money attached lot, on as follows: be constructed home with design Morrisons to be the Samuel “House ” as follows changed room steps
recreation up Then follows of modifications from the detailing original and a design selection of features. optional These include such room, features as recreation roof fur- appliances, nace, kitchen, baths, basement, exterior and lot fireplaces, work. “Lot defined work” is “To include grading only.”
(The Morrison referred “Samuel to is one of sev- design” eral basic designs prepared by architect. appellant’s Appel- had lant and plans construction specifications detailing of a house of in for its use design construction.)
Burkland Agreement 27,1954; dated house (2nd): August near remained completion, only done; to be painting October, 1954; entered into possession advised by appellant’s agent real-estate during negotiations west 105th would brochure; saw saw paved; sign; sidewalks and curbs were installed; partially made men- earnest-money agreement no tion of which remained to painting be completed.
Harlin (3rd): dated Agreement 11,1954; house September it had not partially completed; yet been saw plastered; had sign brochure; no conversation with appellant’s officers but was advised by (after real-estate salesman earnest-money agreement was of one- signed) paving half of the street would not be as the completed city would not permit it; only mention in earnest-money further obligation of is that appellant agrees “Seller to install a cement single tray room without addi- utility tional cost purchaser.” for the Burklands, contracts of the
Except Spelgers these are ordinary are earnest-money agreements. They extra-ordinary that each other than the agreement, two mentioned, for the just provides completion appellant of certain improvements incidental to the lot purchased. Some of the manner in which the have examples parties detailed the duties meticulously are: “front have look-out (Beach); door to door” “install water tap “Lot (Loussac); back work—To include yard” grading only” “install a (Schimpf); cement room single tray utility without additional cost (Harlin); purchaser” “studded added in (Becker). double partition garage” *17 court found:
The trial defendant nor [appel- “Neither plaintiffs [respondents] agreement (Exhibit 2) intended the earnest money lant] Street, 105th and made no mention of West paving which a and made, under each to be complete which purchase the the entire between agreement record of comprehensive minor every and the seller. In house sold buyers respective in not mentioned remained to done which were things the the Only Taylor agreement money agreement. earnest sidewalks, al- and made mention of curbs any installing conceded the defendant [appellant] though and the installation of sidewalks included agreements called the agreement duplication curbs. Even where he was not house, entirely another the house to duplicated in and rested parol Thus completed. part mine.) in part writing.” (Italics this,
From concluded that: “The the defendant did not agreements of become paving in the earnest but rested money agreements part integrated in and in writing.” sidewalks, for the additional of curbs and subject
Except and the to the lots the italicized improvements purchased, in portion foregoing conflict with finding pro- visions made mere earnest-money agreements. fact that appellant promised Taylors (predecessors Fuhrs, interest action whose cause of was dismissed), curbs, so, that it and did writing, would install sidewalks and thereafter did the same for other without respondents on the does not affect the writing subject, completeness agreements on the covered respondents’ subjects thereby.
In their brief, respondents argue:
“ .
.
. since the earnest
were silent
money agreements
with
regard
paving,
parol promise
West 105th
sense at variance
Street was
no
terms of the earnest money agreements.”
A similar
met
court in Allen v. Farm-
contention was
ers &
Bank,
(1913):
Merchants
“ . . It may amiss, stating not be at the risk of truism, the discussion with the obser- premise vation that cannot called incomplete ambiguous merely concerning because it does not stipulate
every possible sufficient, arise. It contingency might contract, if it complete stipulates definitely and fully which, concerning things face, on its it contemplates. contracts, All the Burkland’s, cover Spelger’s except wit, two lots thereon. subjects, improvements have, nevertheless, Respondents succeeded in integrating *18 a third viz., the of a street not even subject by parol, paving within Green Arbor. An additional is thus imposed duty upon respondent while his to receive the right only specific amounts stated in the remains un- respective contracts changed. there is some in-
While distinction between the “partial (relied the trial and the “col- tegration” upon by court) lateral contract” ex- (relied upon majority opinion) Ertner, v. to the evidence rule 33 (Buyken ceptions parol Sears, Roebuck & Co. Wn. 205 P. 628 (2d) (2d) (1949); Nicholas, v. Wn. 20 Am. (2d) (1939); P. col- Jur., Evidence, 988, 992, 1135, 1140, annotation and §§ cases, lected 70 A. L. R. that distinction need not be 752), noticed here. an
The out that to street majority points agreement pave the But, need That is true. neither were writing. not be of these contracts construction of relating provisions houses and to the lots writ- improvements required however, did, those ing. integrate parties provisions earnest-money agreements. their evi- “. . The evidence rule does not exclude an which the could not dence of parties in the written reasonably embody agree- be expected Purchaser, 573, and 98. Jur., ment.” 55 Am. Vendor § their reasonably expected embody Could parties in their earnest-money west 105th all, one, In the fact that of these view of except agreements? thousand twenty dollars, upward involve transactions the trivial have detailed duties of carefully parties and to construction respect improvements, street not existing public 105th street was and that west Arbor, I find it difficult to reach a negative within Green that these very answer to fact instruments question. addition, and un- wholly contain which are in provisions related, earnest-money to the essential requirements indi- (ie. .land), agreements concerning conveyance all cates to mind that intended to integrate my parties in them. subjects negotiation prior contemporaneous As stated, extensively previously majority quotes from, and of, Jerd, v. How- applies reasoning supra. Roof ever, I am of the that the opinion between analogy pres- ent factual situation and that York court of before New in Mitchill appeals Lath, that the supra, reasoning is such in the latter than majority case is more persuasive case, Vermont here. In the should be New applied York case, the defendants owned a farm they wished road, to sell. Across the on another, land belonging they owned an icehouse which could remove. Plaintiff they looked over land, with a view to its and found purchase, the icehouse objectionable.
“ . *19 ‘the Thereupon defendants and orally promised agreed, for and in the consideration of of their farm purchase by the plaintiff, to remove the said ice house in the spring of 1924.’ ...” defendants’ the
Relying promise, plaintiff purchased the cash and a the usual mortgage containing pro- farm for later a deed and entered into visions. Plaintiff obtained Defendants failed and refused to fulfill their possession. the to remove icehouse. rule, reference to the the New York With parol court said:
“ . . . It does not affect a collateral contract It distinct from and the agreement. of written independent at is, times, Williston, the line. in his troublesome draw work on Contracts the ‘Two (sec. difficulty. out 637) points contracts,’ distinct he ‘each for a con- entirely sideration says, separate made time and will distinct may be at the same be Where, however, is entered into legally. one agreement the wholly agree- or in consideration of simultaneous partly another, are necessarily ment to enter into the transactions bound . is agreements . . Then if one together. written, arises whether and the other is problem agree- of the oral close sufficiently prevent proof
bond claimed that the de- the situation here. It is That is ment.’ their to do more than is are called upon required fendants it in connection with the sale as to which contract written . . deals. . an oral our decisions such
“Under before contract at least three the written vary is received present must in form be exist, (1) agreement contradict conditions must or implied it must not one; (2) express collateral contract; it must be one (3) of the written provisions embody not ordinarily expected would parties an of the written in another way, inspection writing; put circumstances surrounding read in the contract, light ‘to contain must indicate that the writing appears not and object and to define the of the parties, engagements it must Or engagement.’ again, measure the extent of such transaction as connected the principal so clearly it. to be parcel these re- the third of satisfy
“The does not respondent have written be, It not the second. We may quirements. contract . of land. . for the and sale purchase “ contract however, At of this least, inspection forth in detail a full and setting shows complete agreement, con- each On it one would reading obligations party. fully were obligations clude that the reciprocal parties he the sur- Nor his alter if knew opinion detailed. would house, the ice even circumstances. The rounding the presence Mitchill knowledge thought objectionable Mrs. ex- that a not lead to belief separate would made it it. an agreement to Were such regard isted with would seem find it in that the most natural should inquirer it is be, but Collateral in form it is found the contract. agree- related to the dealt with written closely subject hold it ment—so that we not be closely may proved. the incompe- the line “Where between competent use. the citation authorities is of slight tent is narrow on the Each judgment precise represents the contract it. How bound to closely facts before *20 each factor in collateral decisive supposed . . . case. “ A line of cases in Massachusetts of which . . [some of which case], Durkin in the majority are cited Roof do have to (156 108) example, v. Mass. Cobleigh But made a deed is given. collateral contracts before to insert col- of a deed makes it fixed form inappropriate lateral agreements, however connected closely with the sale. This cause may be for an exception. Here we deal with the contract on the basis of which the deed to Mrs. Mitchill was given and we confine subsequently, ourselves to the ques- tion whether its terms modified.” may
Some distinctions Jerd, between v. relied supra, Roof upon by majority, Lath, Mitchill v. are to supra, noted. In the former, the form disclosed, is not writing and the oral was to promise facilities develop within the tract to be developed. (Not so in the case. The present prom- ise is street pave not within Arbor.) Green In the latter case, the to remove a from land building within that much conveyed, the same as appellant’s promise a street pave not within the land conveyed the instant case.
No useful
would
purpose
be served in
the num-
discussing
erous cases from other
jurisdictions which have reached
results on
conflicting
this same question, although many of
these cases are collected and
R.,
discussed in 68 A. L.
com-
at
245.
mencing
page
See, also, annotations, 70 A. L. R. 752.
One other feature on this
merits attention.
point
As stated
“
v. Jerd, supra,
citing
case,
Mitchill
Roof
policy
acting
is for consideration.” The decision
of the majority
inconsistent
appears
with the declared policy
Sears,
this court
Roebuck & Co.
Nicholas,
supra
(bill of sale); Union Machinery & Supply
Darnell,
Co. v.
clude evidence of respondents’ or prior contemporaneous promises to Arbor, outside Green even in the absence of the so-called merger clause contained in each respondent’s earnest-money agreement, viz., “There are no verbal or other agreements which modify affect this agreement.”
But here have we do clause earnest-money agreement. seems to me majority to have failed to give *21 something provision. or Either it means proper this effect to merger surplusage. clauses, reference to Williston With it is (Rev. ed.) 811A) § (3 2281, 2282 Contracts on Williston states: involving application “In most of the situations only presence addi-
merger clause is an clause the reaching result that would be the same tional reason for reached without parol evidence rule. it on the basis The cited footnote states: in- merger tends, course, to establish clause “The integration writing parties an that the shall be
tent of the
of their
agreement.
not, however,
It is
conclusive.
writing
incomplete,
sufficiently appears
Where it
notwithstanding
warranty
enforced
an oral
will be
Corp.
merger
presence
Johns-Manville
clause.
505,
Each subjects complete upon treated therein. That oral earnest-money pave and affects the modifies to enlarges appellant’s agreement, It there can no doubt. rights. purports obligations, It to not increase its does but paving pay obligate appellant $2,250 out additional to n without paid to be increase in the consideration According respondents, appellant’s promise respondents. pave the same consideration street rests west 105th earnest-money promises supports embodied in the agreements.- agreed expressly parties have that, held where
haveWe agreements are that there no verbal contract in a written express expressed therein, those other than Engineering v. Romano is inadmissible. Webster warranties (2d) (1934), cited; Corp., cases 118, 34 P. 178Wash. (1940). (2d) 382, 101P. Mallon, 3 also, Jones v. Wn. applied reasoning likewise cases should be of these Respondents present merger should case. clause impeach permitted facet their contracts now agreement (promise by proving another oral that there is and materially which modifies Arbor) outside Green pave assumed therein. appellant increases burdens reasons, testimony as to oral For foregoing prom- Arbor, outside Green which were ises with, to, made execution of prior contemporaneous not have agreements, should been respondents’ respective the trial court. accepted by *22 finds also an additional for majority ground uphold- trial court, viz., decision of the that
ing appellant (seller) not contract, did the Beach and therefore the sign rule not could because there was no apply writing. This have gone by seems to unnoticed the-trial point all fact, action. In Beach parties respondent to verified the existence of the reply, admitting merger It clause his contract. is not correct that a say to writing does exist because its contents are simply insufficient satisfy to the statute frauds.
While not fact, mentioned the trial findings of judge did comment that, his memorandum opinion subsequent to execution of their earnest-money (Sepr tember 24,1952), letter 13, 1952, of November appellant, Mr. Beach that he promised would west 105th street. pave The trial court noted that since the agreement was original still partly executory, consideration the original agreement would support modification. The subsequent majority recognizes and approves this reasoning, holding our decision in Nielsen v. Northern to Equity Corp., supra, be But controlling. what was the extent of appellant’s prom- under this ise modification? 1, Lot
“Paving 1, on Block Green Addition, Arbor on length Lot West 105th Street hut only full % the street said adjoining property.” (Italics mine.) The trial court so found.
This promise became impossible to perform 1954, when area involved in this case west 105th (including street) was annexed-to the city Seattle, because the city would not thereafter permit appellant only to pave oné-half street. 6 is a letter Mr. to mortgage
Exhibit from his Spelger dated 1952. earnest- company (The November Spelger letter money agreement was executed October This 2,1952.) advises the done of minor mortgage company things before the to release the balance company authorized of the purchase In price complet- addition appellant. ing certain lot, required work on the house and Mr. Spelger that stating “Also furnish us with a letter are 105th street they [appellant] (Within going a certain time).” this letter referred Apparently, because 1953: January letter of appellant, responded by “In November accordance with Mr. letter of Spelger’s 1952, there were a few items on house to be com- said and this letter this work pleted certify is written to will be within 30 weather completed days permitting (Italics above date.” mine.) refer- It letter is to be noted that made no appellant’s However, conceding ap- ence to west 105th street. paving price of the balance of pellant’s receipt purchase of the Spelger a modification adequate consideration for modification, still Beach on the same basis as the *23 in- obviously vague so to is promise pave appellant’s be unenforcible. definite to second, me that review of record convinced
My Harlin, and (Burkland, fourth action third, and causes of these in each of dismissed, because should be Schimpf) to was made prior pave alleged causes earnest-money agreements. the respective the execution of somewhat modification is subsequent the theory While there is the complaint, allegations at variance with earnest- execution of their to the that, subsequent respondents orally promised appellant money agreements, west 105th causes) that and sixth (first Loussac Becker and these no evidence that there is but would be paved, consideration either (a) supported were promises were these respondents contracts of made while (b) under consideration a thereby supplying executory, still These Corp., supra. Northern Equity Nielsen v. rule are they because enforcible legally are not promises supported by consideration, which is essential the cre- ation of every binding contract. the first Hence, and sixth causes of action should have been dismissed. likewise
The subsequent modifications of the Beach and Spelger contracts are unenforcible because appellant’s promise Beach became impossible appellant’s perform, prom- vague ise and indefinite as Spelger so to result Thus, seventh and no contract. causes of action eighth should have been dismissed. is no
Furthermore,
there
evidence whatever
that appel-
lant ever
one of
promised
respondents
would
of west 105th street
Arbor
portion
abutting Green
feet
for width
(812
long),
feet,
of twenty-five
according
city of Seattle
specifications.
requires
order
to do
more
nothing
judicial
so is
than a
imposition
of terms which
never
parties
agreed upon, but which
court
deemed to be reasonable.
this court
following language
Baasch v. Cooks
Union,
Local No.
Wash.
For the above, several reasons I stated would reverse order trial and direct the dismissal of the seven causes action. remaining Rosellini, J., worth, concurs with Don J.