Clements v. Cook

Citations

• 112 Wash. 217
• 191 P. 874
• 1920 Wash. LEXIS 729

Syllabus

<p>Frauds, Statute of (44)—Operation of Statute—Modification of Contract. Upon a vendor’s refusal to deliver logs under a written contract, because of default in tbe payments, an oral agreement to continue deliveries if the purchaser would furnish security, which was done, is not objectionable as an oral agreement to modify the contract within the statute of frauds.</p> <p>Same (44, 60)—Modification of Contract—Instructions. Upon an issue as to an oral modification of a written contract, required by statute to be in writing, it is not error to fail to instruct the jury that the proof must show a written modification or be of the clearest and most satisfactory kind; since it is for the court to first determine whether there is positive, definite and unambiguous testimony of the modification sufficient to sustain the burden of proof, and if so, to submit it to the jury to determine whether it preponderates over evidence to the contrary.</p> <p>Same (44)—Modification of Written Contract. A contract required by statute to be in writing may be modified by an executed oral agreement.</p> <p>Appeal (449)—Review—Harmless Error. In an action for breach of contract to deliver logs, the admission of evidence to show how much the buyer had paid on the purchase price of a mill taken from him on his default under a conditional sale contract, is harmless error, since it was a merely incidental and collateral matter and must have been so regarded by the jury.</p> <p>Sales (77)—Failure to Deliver—Justification for Breach. A seller cannot justify his refusal to deliver any more logs after receiving payment on the contract, on the ground that the buyer lost the mill soon afterwards through default under a conditional sale contract, thus leaving him in no position to perform, since if the seller had resumed delivery of logs, the owners of the mill might not have elected to forfeit the conditional sale contract.</p> <p>Evidence (16, 18)—Judicial Notice. The court will take judicial noti