O'Connor v. Lighthizer

Citations

• 34 Wash. 152
• 75 P. 643
• 1904 Wash. LEXIS 327

Syllabus

<p>Appeal — Dismissal—Parties—Sureties on Cost Bond When Not Necessary Parties — Judgments Against. Without express statutory authority, a judgment can not he entered against sureties on cost bonds in the same action in which the bond is filed, but the sureties are entitled to their day in court, and are not parties appearing in the action upon whom notice of appeal need he served, in the absence of any judgment against them (Broolcway v. Abbott [posf], 74 Pac. 1069, overruled).</p> <p>Same — Void Judgment — Appealable. Where the court had entered a void judgment against sureties on a. cost bond, they may appeal, and they are accordingly necessary parties upon whom notice of appeal must he served.</p> <p>Vendor and Purchaser — Specific Performance of Sale — Defenses — Contract Induced by Fraud — Parol Evidence Contradicting Writing to Show Fraud. In an action for the specific performance of a contract to convey land, an answer alleging fraud and false representations in procuring the written contract and showing a different consideration from that expressed, is not demurrable because it shows a different oral agreement varying the terms of the written contract, since oral testimony to vary the terms of a writing is admissible to show that it was induced by-fraud and never became operative as a valid contract.</p> <p>Same — Conditions Precedent. The same rule applies to conditions precedent, parol evidence being admissible to show that the contract never took effect by reason of the failure of conditions which were to be first performed by the other party.</p> <p>Same — Sufficiency of Answer — Fraudulent Representations as to Future and Existing Facts. In an action for the specific performance of a written contract to sell land for the stated price of $1,500, an answer alleging fraud in procuring the contract is not insufficient on the theory that the representations relate to future acts to be performed, where it is alleged that plaintiff represented that he was int