Hudson v. Ellsworth

Citations

• 56 Wash. 243
• 105 P. 463
• 1909 Wash. LEXIS 882

Syllabus

<p>Evidence — Parol Evidence to Vary Writing. Where a mortgage provided that the mortgagor shall keep the buildings insured for the benefit of the mortgagee and deliver the policies of insurance to him, oral evidence that the mortgagee agreed to secure the insurance and that the mortgagor paid him $30 and took a written receipt therefor at the time of the execution of the mortgage, is not inadmissible as varying the terms of the mortgage; and the mortgage and receipt should be construed as one instrument.</p> <p>Same — Secondary Evidence — Loss or Writing. In such a case, upon establishing the loss of the receipt, oral evidence is admissible to prove its contents.</p> <p>Pleadings — Amendment at Trial. Error cannot be predicated on the allowance of a trial amendment to the complaint, when no continuance was asked and no abuse of discretion shown.</p> <p>Contracts — Consideration — Gratuitous Service — Mortgage— Agreement to Secure Insurance — Liability for Loss. A mortgagee who had required a stipulation in the mortgage for insurance of buildings on the premises is not liable for the loss of the property by reason of agreeing to secure the insurance, accepting the insurance premium, and giving a receipt therefor, where he had not entered upon performance of the service, unless the same was all one continuous transaction, so that the giving of the mortgage would constitute the consideration for the agreement to secure insurance; the mere payment and acceptance of the premium being nudum pactum and insufficient alone to support a subsequent promise.</p> <p>Fullerton, J., dissents.</p>