32 Wash. 236 | Wash. | 1903
The opinion of the court was delivered by
This is an action to recover upon a supersedeas bond given in a case on appeal to this court. Plaintiff was nonsuited by the lower court, and appeals from a judgment thereon.
The facts in the case are substantially as follows: Bespondents Drum & Morgart were tenants from month to month of certain real estate belonging to appellant. On April 2, 1901, appellant brought an action for unlawful detainer against his tenants, Drum & Morgart, for the possession of the premises. A trial was had on June 25, 1901, in said action, and a verdict was rendered in favor of plaintiff for restitution of the premises, and for $300 rent to July 1, 1901. Judgment was rendered on this verdict on July 2, 1901. On June 26, 1901, six days before the judgment was rendered in the lower court in the unlawful detainer action, the appellant, who was plaintiff in that action, sold and (by general warranty deed) conveyed the real estate in question to his wife, as her sole and separate property, expressing a consideration of $5 and love and affection. After the habendum clause, the deed recites as follows:
*238 “It is understood, that the above described real property is now the separate property of the said first party [George W. Carmack] and the intent, purpose and effect of this conveyance is and shall he to vest the same in the said second party [Marguerite Carmack] as her sole and separate property and free and clear of all right, title, interest and control of the said first party and of all community rights and interests whatsoever of the said parties hereto.”
Dram & Morgart, after the entry of the judgment rendered on July 2, 1901, appealed therefrom to this court, and gave a statutory supersedeas bond for stay of proceedings pending the appeal. This bond was in the penal sum of $1,000, with the respondent in this action, the American Bonding & Trust Company, as surety, and was conditioned, among other things, to “pay all rents or damages to any property accrning during the pendency of the appeal out of the possession of which respondent shall he kept by reason of the appeal.” By virtue of this bond, Drum & Morgart kept possession of the premises pending the appeal in that case. The judgment was affirmed on appeal (Carmack v. Drum, 28 Wash. 472, 67 Pac. 808) and a remittitur filed in the lower court on March 26, 1902. On April 7, 1902, after the filing of the remittitur, the defendants in this action paid into the registry of the trial court the amount of the judgment and costs as required by the remittitur from this court, and the appellant in this action drew the amount so paid, and acknowledged satisfaction of the judgment'. Prior to the filing of the remittitur, and on the 18th day of March, 1902, Dram & Morgart voluntarily surrendered to appellant the possession of the premises, hut refused to pay to appellant any rent therefor or damages thereto accruing during the pendency of the appeal, from July
Upon the trial of this case in the court below, after the appellant had introduced in evidence the deed from himself to his wife, conveying the property to her, he offered to show that, at the time of the conveyance to her, and as part consideration therefor, he and his wife had an oral agreement to the effect that appellant should retain possession of the property and the right to collect the rents thereof until January 1, 1903. This evidence was excluded by the trial court upon the ground that it contradicted and varied the terms of the written deed. The appellant, however, was permitted to testify, and did testify, in substance, that subsequent to the delivery of the deed he had such an agreement with his wife; but upon cross-examination he said that the agreement was made about the time the deed was executed, and was a part of the same transaction. Thereupon the court, on motion, struck out all of that evidence, basing this ruling upon the former one that it varied and contradicted the terms of the deed, which was the culmination of the contract between appellant and his wife. Appellant thereupon offered to prove by his wife, the gi*antee in the deed, that there was an oral agreement that appellant should have the rents.
Counsel for respondents argue that, since this is an action on the bond, and since the bond was given to protect the appellant, who was respondent in the action in which the bond was given, for rents or damages accruing during the pendency of the appeal, out of the possession of which the respondent was kept by reason of the
“The rule under consideration is applied only (in suits) between the parties to the instrument; as they alone are to blame if the writing contains what was not intended, or omits that which it should have contained.*241 It cannot affect third persons, who, if it were otherwise, might he prejudiced by things recited in the writings, contrary to the truth, through the ignorance, carelessness, or fraud of the parties; and who, therefore, ought not to be precluded from proving the truth, however contradictory to the written statements of others.”
In.21 Am. & Eng. Enc. Law (2d ed.), 1103, the rule is stated thus:
“The rule applies only to controversies between the parties or their representatives and privies, and to cases where the enforcement of the instrument is the gravamen or substantial cause of action. It has no application to strangers, for one not connected in any way with the agreement may show by parol what the real transaction was, even in a contest with one of the parties. And inasmuch as a stranger is not bound by the rule, even in a controversy with a party to the transaction, it follows that in a controversy with strangers to the instrument the parties to it are not themselves estopped to explain or contradict it by parol evidence.”
To the same effect are the following authorities: 2 Parsons, Contracts (8th ed.), p. 672, *p. 556; Brown, Parol Evidence, § 28; Darby v. Arrowhead, etc., Hotel Co., 97 Cal. 384 (32 Pac. 454 ); Bank of California v. White, 14 Nev. 373; Strader v. Lambeth, 7 B. Mon. 589; Busch v. Pollock, 41 Mich. 64 (1 N. W. 921).
Under this rule it seems clear that the appellant should have been permitted to show the real transaction between himself and his wife. These respondents were not parties to the deed. The character of the contract did not concern them so long as their rights were not interfered with. The appellant was at liberty to sell the properly to another, and retain possession thereof and collect the rents, and under such a contract his former relation with the respondents as landlord would not be changed. They
If both the owner of the fee and the appellant, who had parted therewith, agree that the appellant was entitled to the rent, and that his relation to the respondents as landlord was not changed, no rights or liabilities of respondents were in any way changed, for under such circumstances, if the rent were paid to the appellant, his grantee could not again enforce payment thereof. The fact that the judgment in the unlawful detainer action was satisfied did not release the liability upon the bond. Carmack v. Drum, 28 Wash. 472 (68 Pac. 894).
Por these reasons, we think the court erred in excluding the evidence offered. The judgment is therefore reversed, and the cause remanded for a new trial.
Pullerton, O. I., and Hadley, Anders and Dunbar, JJ., concur.
On Petition eor Modification.
In this case, after the lower court had granted a nonsuit as to plaintiff’s cause of action, the court proceeded to determine the merits of certain counterclaims pleaded by defendants, and the judgment thereon was adverse to defendants, respondents here. Ho appeal was taken from that portion of the judgment. The appeal was taken by the plaintiff from that part only of