Opinion
No. 19427. Department One.
January 8, 1926.
PLEADING (112) — AMENDMENT — NEW OR DIFFERENT CAUSE OF ACTION. A complaint alleging a contract between plaintiff and defendant for the sale of hay, which was afterwards "confirmed and reduced to writing" and copy of which is set out in the complaint, cannot be amended to allege a verbal agreement, and that "thereupon the plaintiff mailed to the defendant a copy of the following memorandum," setting out a copy of the contract, where the contract was complete in itself and free from ambiguity.
EVIDENCE (169) — TO VARY WRITING — COMPLETENESS OF WRITING. A signed letter in which the buyer "confirmed" the purchase from the seller of five cars of 93 per cent pure first cut alfalfa, at $21 per ton f.o.b. track at A. for loading prompt, immediately acted upon, is complete and free from ambiguity and may not be varied by parol evidence.
JUDGMENT (227) — MATTERS CONCLUDED — MATTERS NOT IN ISSUE. A judgment for damages for breach of warranty of alfalfa, resold by defendant as "93 per cent pure and good green color," is not binding upon the first seller, participating in the defense, where his warranty to defendant, was only that it was "93 per cent pure"; "good green color" being, under the evidence, an additional warranty for which he was not liable to plaintiff in the former action.
Appeal from a judgment of the superior court for Yakima county, Nichoson, J., entered January 31, 1925, in an action to recover damages for breach of contract of sale. Reversed.
Rigg Venables and Nat U. Brown, for appellant.
Grady Velikanje, for respondent.
The appellant on February 26, 1923, sold to the respondent certain alfalfa hay under a written contract which reads:
"Yakima Milling Co. "Toppenish, Wn. "Yakima, Wn. Feb'y 26, 1923.
"Gentlemen:
"I confirm purchase of you today of 5 cars 93% pure 1st cut. Alf at $21.00 per ton FOB track Ashue Wn. for loading prompt.
"This confirms our conversation in my office at Toppenish, also phone call to you of this evening.
Accepted by Yours very truly, ________________ (Signed) H.M. Asbury"
Respondent immediately resold the hay to one V.J.W. Alexander, as agent for Higgins Walker, also under written contract, which reads:
"V.J.W. Alexander Sunnyside, Washington
Dear Sir:
"Confirming sale to you today of five (5) cars First Cutting Alfalfa ninety three percentum (93%) pure of good green color to be loaded f o b cars Ashue Siding Washington At the agreed price of $22.00 per ton, on or after the 1st day of March, 1923. Hay to be paid for as loaded.
"Buyer has paid the sum of $150.00 as an advance payment on hay and advance to be deducted from the last two cars loaded at the amount of $75.00 per car.
"H.M. Asbury, "Seller.
"Accepted by V.J.W. Alexander, Buyer."
The hay was duly delivered and shortly thereafter Higgins Walker made claim to the respondent that the hay was not as warranted, in that it was not 93% pure alfalfa and was not of good green color. This claim being unadjusted, Higgins Walker brought suit in the superior court for Yakima county against both respondent and the appellant to recover the damages flowing from the alleged breach of warranty, seeking to hold the appellant in that action upon the ground that it was the principal and that the respondent Asbury was acting only as its agent in selling the hay to Higgins Walker. Upon the trial of that case, at the close of plaintiff's evidence, a motion for nonsuit was granted in favor of the appellant, and it was dismissed from the case. The action proceeded to judgment against the respondent Asbury, resulting in a judgment against him, which was entered on May 28, 1924. Thereafter, the respondent Asbury in turn brought this action against the Yakima Milling Company to recover from it the amount of the judgment recovered against him by Higgins Walker, together with his costs and attorneys' fees in that suit, amounting in all to the sum of $382.83. In his complaint Asbury pleaded the written contract under which he purchased the hay from the appellant, and alleged that both parties knew that the hay was being purchased for resale. The contract of resale to Higgins Walker was also pleaded, and it was alleged that the appellant Yakima Milling Company was bound by the judgment rendered against Asbury in the Higgins Walker suit, because it had conducted and controlled the defense and was the active and moving spirit throughout the trial, etc., etc. The trial court held that, by its participation in the former action, the Yakima Milling Company was bound by the judgment there rendered and thereupon, denying to respondent his attorneys' fees in the former action, rendered judgment against the appellant for $304.33, from which judgment it appeals.
In the original complaint in this action filed by the respondent, it is alleged:
"On or about the 26th day of February, 1923, the plaintiff and defendant entered into a verbal agreement wherein and whereby the defendant agreed to sell and deliver to the plaintiff five carloads of first cutting alfalfa hay, and warranted the same to be 93% pure, at the price of $21.00 per ton, F.O.B. track, Ashue, Washington, and thereupon said verbal agreement was confirmed and reduced to writing in duplicate, each party having and retaining one of such duplicates, and the same being in words and figures as follows, to-wit: . . ."
And at the beginning of the trial, over the objection of the appellant, this paragraph of respondent's complaint was amended to read as follows:
"On or about the 26th day of February, 1923, the plaintiff and defendant entered into a verbal agreement wherein and whereby the defendant agreed to sell and deliver to the plaintiff five carloads of first cutting alfalfa hay, and warranted the same to be 93% pure of good green color at the price of $21.00 per ton, F.O.B. track Ashue, Washington, and thereupon the plaintiff mailed to the defendant a copy of the following memorandum, . .. "
[1, 2] The first and principal error assigned is that the trial court erred in permitting the complaint to be amended as indicated, and in admitting parol evidence to vary the terms of a written contract. That presents a question of whether or no the written contract was complete in itself and so far free from ambiguity as to come within the rule. Respondent, while admitting the rule generally, seems to contend that, to come within the rule, the writing must not only on its face express a complete agreement, but also must show evidence of careful preparation and a due consideration of all questions which might naturally arise out of the subject-matter. It should be noted, before we go further, that here no question is raised because the contract was not signed by the seller, and it is admitted that the seller became bound by the writing (so far as it goes) by acting upon it and delivering the hay, to the same extent as though it had affixed its signature thereto. There may be, and doubtless are, courts which have adopted the broad rule for which respondent contends; but that is not the rule of this state. Here we have a writing complete as to every essential of a contract, — parties, subject-matter, price, time and place of delivery. The reference therein to prior conversations is not a reference to them for terms or conditions, but expressly for confirmation of all such conversations which have gone before, and plainly means that all prior parol negotiations and agreements are merged in and limited to the written conditions expressed. As such, under a long line of decisions of this court, it is a written contract, such as may not be varied by parol evidence. Interstate Engineering Co. v. Archer, 64 Wn. 629, 117 P. 470; Fairbanks Steam Shovel Co. v. Holt Jeffery, 79 Wn. 361, 140 P. 394, L.R.A. 1915B 477; Peterson v. Denny-Renton Clay Coal Co., 89 Wn. 141, 154 P. 123; Thomson Stacy Co. v. Evans, Coleman Evans, 100 Wn. 277, 170 P. 578; American Paper Co. v. Hastings, 123 Wn. 595, 212 P. 1071.
It was, therefore, error to permit the amendment of the complaint and to admit parol evidence to vary the terms of the written contract.
[3] The next question is, as to the judgment in the first action being binding upon the appellant in this action. What we have already said shows that on the face of the two contracts, which must be taken as they are written, there is a difference in the warranties. The first contract calls for 93% pure first cutting alfalfa, while the second contract, in addition to that specification, requires that the hay be of good green color. It would seem that the measure of damages would therefore differ. Respondent seems to contend that, if alfalfa hay is 93% pure, it must be of good green color, and, therefore, the words "good green color" are merely descriptive. Some evidence is pointed to in the record which might be construed to so mean. However, the evidence, taken as a whole, we think does not support this view, but preponderates in favor of the view that the words "of good green color" constitute an additional warranty. Respondent, therefore, may recover only for failure to furnish first cutting alfalfa, 93% pure, and the judgment in the prior action, based upon that warranty and also upon the additional warranty as to color, cannot be the measure of his recovery, and therefore appellant is not bound by the former judgment.
The judgment appealed from is reversed with directions to grant a new trial.
FULLERTON, PARKER, HOLCOMB, and ASKREN, JJ., concur.