34 Wash. 331 | Wash. | 1904
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,
Tor 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 asso
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 this 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 compíete 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. Law (2d ed.), 1904.
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 falls Within the familiar rule that parol evidence is admissible to prove an oral agreement relating to a different subject matter from that covered by the written contract, although both contracts may be parts of the same transaction.” Lynch v. Curfman, 65 Minn. 170. 174, 68 N. W. 5.
The evidence admitted in the case at bar was not only to the effect that the parol license existed, but also that it was executed by the cutting and removal of the timber. It was therefore competent evidence, under the above rule, and if true, then, under the representations, appellants are now estopped to claim as against the purchasers, and respondent as successor in interest, that the license was not given, or that they were not, at the time, actual owners of the timber, with full power to sell it.
Por the foregoing reasons, we shall consider the criticized evidence for the purposes for which it was introduced. Inasmuch as there was conflict in the evidence, it becomes a question to what extent this court will review the action of the trial court in granting a new trial. Appellants urge that it is the province of the jury to pass upon the evidence,, and that it is error to grant a new trial for insufficiency thereof, when there is any evidence to support the verdict.
In several of the above cases it is held that, when there is a substantial conflict in the evidence, this court will not hold that the discretion of the trial court is abused by the granting of a new trial. Within the rule above discussed, there is nothing in this record to show that the lower court abused its discretion in granting the new trial.
The judgment is therefore affirmed.
Fullerton, C. J., and Anders and Mount, JJ., concur.