Opinion
No. 20824. Department Two.
October 18, 1927.
EVIDENCE (158) — PAROL EVIDENCE TO VARY WRITING — EXISTENCE OF CONDITION. Parol evidence is admissible to show that a contract for a broker's commission was delivered to the owner's agent subject to the condition precedent that the sale be approved by the owner's wife, and never became effective because of her disapproval.
Appeal from a judgment of the superior court for King county, Gilliam, J., entered November 29, 1926, upon findings in favor of the defendants, in an action on contract, tried to the court. Affirmed.
James R. Chambers, for appellants.
Stanley J. Padden and George F. Ward, for respondents.
For some time prior to July, 1924, C.W. Antill, one of the appellants, was engaged in the real estate business in Seattle. He had advised with the Neelys, respondents, concerning a probable exchange or sale of a property belonging to them known as the Fiona Apartments, in the same city, and it was listed with him. Mrs. Neely transacted the business matters for the community. During the month of July, she was absent from the state, visiting relatives in Wyoming. During her absence, appellant Antill notified Robert Neely that he had a purchaser for the apartments and asked him to sign a contract for the sale thereof. Neely demurred because as he said,
"I could not sell the place without my wife's notice but that she would approve of it."
After much conversation, it was agreed that Neely should sign the contract, but that Antill should keep the contract in his office until after Antill should wire Mrs. Neely and secure her approval. He wired Mrs. Neely and she refused to approve of the deal, whereupon the earnest money was returned to the prospective purchaser and the deal called off.
In January, 1926, eighteen months thereafter, suit was brought to recover under the contract for the commission which Antill would have received for consummating the deal. He assigned his rights under the contract to Josephine Shattuck, also an appellant. Answer was filed alleging, as an affirmative defense, that the agreement was signed with the express understanding that it was not to become effective until Mrs. Neely's approval had been obtained; that she had refused her approval, and thereupon the deal had by mutual consent been abandoned. After the trial, the court found that the affirmative defense was sustained by the evidence, dismissed the action, and this appeal followed.
[1] Much is said in the brief concerning the failure of the court to hold the respondents to the written contract signed by Robert Neely. It is said that it destroys the sanctity of the written contract to allow oral testimony to show that there was a condition attached to the contract. But it must be remembered that this testimony was offered to show that there never was a delivery of the contract in question, because it was conditioned upon the securing of Mrs. Neely's approval. This was a condition precedent, and was offered to show that the contract, although signed, never became operative as a contract. Our decisions fully sustain this view. Reiner v. Crawford, 23 Wn. 669, 63 P. 516, 83 Am. St. 848; Seattle National Bank v. Becker, 74 Wn. 431, 133 P. 613; First Methodist Episcopal Church v. Soden, 131 Wn. 228, 229 P. 534.
In the last cited case, we quoted approvingly from Vincent v. Russell, 101 Ore. 672, 201 P. 433, 20 A.L.R. 417, as follows:
"`The rule sanctioned by a practically uniform line of authorities is that parol evidence is admissible to show that a negotiable note, absolute in form, although manually delivered to the payee, was not to become a binding obligation except upon the happening of a certain further event, since such evidence does not vary or alter the instrument, but tends merely to show that it never became a valid undertaking.'"
Appellants have also attacked the testimony offered by respondents to show that the approval of Mrs. Neely was to be secured. It would be unprofitable to review the testimony. Suffice it to say that a reading of it convinces us that the court's decision was in accordance with the weight of the testimony, and that we have no right, under our well established rules, to set it aside.
Judgment affirmed.
MACKINTOSH, C.J., MAIN, FULLERTON, and HOLCOMB, JJ., concur.