provided that the defendants here, on or be fore August 1, 1905, should personally discharge without using any of the partnership assets, all the firm's obligations represented by several of its promissory notes, required Christensen to discharge certain other of its obligations, and generally provided for the disposal of the remainder of the firm's assets. The fifth paragraph states that: "None of the funds or assets of the partnership shall be in any way used by any of the liquidating partners, except as provided herein. The said funds shall be kept separate and apart from and be in no wise commingled with any other funds or assets. All moneys of the partnership shall be deposited in the name of and to the credit of Morris Bros. & Christensen." the paper which the latter exhibited to him. In the light of such cases as Wiseman v. N. P. R. R. Co., 20 Or. 425, 26 Pac. 272, 23 Am. St. Rep. 135, Jones v. Teller, 65 Or. 328, 133 Pac. 354, and Parker v. Smith Lumber Co., 70 Or. 41, 138 Pac. 1061, the witness, though clearly remembering the same, could not be permitted to state the contents of the paper, unless some showing was made to account for not producing it. Much less, in the absence of such explanation, could he substitute his own memorandum of his remembrance of its terms [3] All this, however, as stated in the complaint, was part of, and hence, as a matter of law, was merged in, the written agreement and cannot affect the conditions thereof as thus finally settled. We here recite the oft-quoted section 713, L. O. L.: "When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except in the following cases: writing is put in issue by the pleadings; "2. Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under relates, as defined in section 717, or to explain which the agreement was made, or to which it an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud. The term 'agreement' includes deeds and wills as well as contracts between parties." Finally, on November 1, 1905, the members of the firm made their last written stipulation, so far as the record discloses, winding up its affairs in detail according to schedules annexed to the document, and apportioned among themselves the liabilities assumed by each. In all these written contracts affecting liquidation of the firm, no mention whatever is made of any obligation to Muir or of his ownership of or right to any of the stock of the Power Company. On the contrary, as quoted above, they expressly interdicted any use of the assets except as prescribed in the language of their stipulations. There is no attempt whatever to prove the averment of the complaint that as early as November 7, 1904, the partners of the firm had determined to issue any stock to Muir. [2] Plaintiff offered oral testimony to show that in the negotiations culminating in the agreement of June 26, 1905, the partners set [4] The plaintiff argues that she was enaside 1,000 shares each for Muir, Brown, and titled to show the actual consideration of Hurlburt, and one share each for J. Frank the contract in question; that she is not Watson and A. B. Croasman. Such proffered bound by its terms, and may show other evidence is found in the deposition of Muir, conditions supporting her claim. It must wherein he speaks of having seen a certain be admitted that the talk about other posyellow paper memorandum shown him in sible additional compensation was not defiPhiladelphia in April or May, 1908, by James nite enough to constitute a legal obligation. H. Morris, whereon were set down in the As a corollary to this, it is plain that the latter's handwriting 1,000 shares each for amount and manner of additional pay rested Muir and Hurlbut, and he thinks 2,000 for solely in the discretion of the employers, and Brown, which Morris told him were made without some definite stipulation supported when the agreement of June 26, 1905, was by sufficient consideration, no liability would framed so as to determine what would be left accrue against them. It is indispensable, of the Power Company stock to be disposed of therefore, for the plaintiff to show some such between the partners. The witness Christen- contract. Indeed, this is the avowed theory sen also testified about the same memoran- of the complaint, as stated in the thirteenth dum all over the objections of the defendants. paragraph. The plaintiff must therefore The plaintiff relies upon this paper to prove claim under the contract of dissolution or the fixing of the then yet undetermined not at all. Her demand cannot rise above amount of extra remuneration to be awarded its source. If the theory of the complaint to her decedent. If it was of any value as is sound, Muir was in every sense of the proof, the paper itself was the best evidence; word a privy to the contract of dissolution. but curiously enough, no effort appears to both by the allegations of that pleading and have been made to produce it or to account the operation of the law. Under the profor its absence. Not only so, but Muir, avow- visions of section 713, L. O. L., no other eviing his complete forgetfulness of it, offered dence is admissible to declare the terms of as evidence of its contents part of a written the contract, except the writing itself. The statement made by himself May 30, 1908, partners had a right to contract as they when, as he says, the matter was fresh in chose concerning the assets of their own his memory, covering his recollection of the firm. It is true enough, as argued by the [5] The plaintiff cannot import into them any additional stipulation inuring to her benefit on the pretense that she is merely inquiring into the consideration. The provisions of the agreements constituting the consideration are contractual in their nature, and not merely monetary. Within the meaning of Sutherlin v. Bloomer, 50 Or. 398, 93 Pac. 135: personalty of the concern by oral agreement, | plete in themselves, leaving nothing more to and have fastened upon it a trust in favor be said. of any one they chose to mention. But although it is competent to create a trust in chattels by parol, yet it is equally true that when parties have reduced their contract to writing, even about a matter that might have been left to recollection, that instrument is the exclusive standard to which their obligation must be referred. Taken altogether, the contracts already mentioned constitute a complete disposition of all the assets of "The consideration specified in the written the firm in detail. They are binding not on- contract consists of certain acts to be performed, ly upon the parties themselves, but also up in holding that, where the statement in the and the authorities are practically unanimous on those who claim under them. The writ-written instrument as to the consideration is ings left nothing to determine respecting the stock in question. All the shares were finally and effectively disposed of, nothing remaining to be done. In other words, the contract was complete within itself about all such matters. Therefore it cannot be varied by parol testimony. The case is essentially controlled by Oregon Mill Co. v. Kirkpatrick, 66 Or. 21, 133 Pac. 69, where a similar queswas privy to the contracts involving disposition of the shares in question he cannot tion was involved. In brief, unless Muir claim the benefit of them. On the other hand if he was privy to them, he must take them as he found them. In them, however, as before stated, there is no provision for his benefit. The principle is stated thus by Mr. Chief Justice Moore in Pacific Biscuit Co. v. Dugger, 42 Or. 513, 70 Pac. 523: "The rule that an instrument in writing_cannot be contradicted or varied by parol evidence applies only between the parties and their priv ies, and cannot be invoked in controversies between third parties and any of the parties to the contract." In that case a son had executed to his mother a bill of sale of a stock of goods in his possession absolute on its face, but in reality as a mortgage to secure her for moneys which she had advanced to him. The plaintiff, claiming that the son in control of the business was her agent, sued her for the price of certain goods delivered to him and which he had included in the bill of sale. The paper was offered to prove her absolute ownership of the stock of goods. This document was thus drawn in question collaterally between parties, one of whom was a stranger to it, and it was held that she might show the real object of the contract as against the stranger. In such cases as the American Contract Co. v. Bullen Bridge Co., 29 Or. 549, 46 Pac. 138, only the rate of payment and quality of the property to be delivered was specified in the offer and acceptance of the parties, nothing being said about the quantity to be furnished. It is plain in such a case that not all the contract is included in the writing, and that the remainder of the terms may be proven by parol. In the instant case, however, the contracts are com of a contractual nature, as where the consideration consists of a specific and direct promise by one of the parties to perform certain acts, it cannot be changed or modified by parol or extrinsic evidence." All the assignments of error upon which the plaintiff relies are bottomed upon an effort to go behind the written contract of agreement for the benefit of the plaintiff's dissolution and prove by oral testimony an decedent. They must all yield to the rule declared by section 713, L. O. L., and cannot avail the plaintiff at this juncture. The judgment of the circuit court was right, and must be affirmed. MOORE, C. J., and HARRIS, J., concur. BEAN, J., dissents. (79 Or. 38) CITY OF PORTLAND et al. v. AMERICAN (Supreme Court of Oregon. - EQUITY PROCEEDING - DIS 1. COSTS 13 [Ed. Note. For other cases, see Costs, Cent. Dig. §§ 21, 25; Dec. Dig. 13.] 2. APPEAL AND ERROR 323-MATERIALMEN -ENFORCING CLAIMS-APPEAL-NECESSARY PARTY. a contractor and his surety other subcontracWhere, in a suit by a materialman against tors were made parties so as to determine their participation in the unpaid portion of the contract price, one subcontractor was denied participation and appealed, the other subcontractor defendants were necessary and proper parties to the appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1796, 1798-1805; Dec. Dig. 323.] 8. COSTS 230-PREVAILING PARTY SEV Where in such appeal appellant obtained a reversal, with costs against the contractor's surety, the other defendant subcontractors will not be awarded costs against appellant on motion therefor, since, in being allowed participation, he was a prevailing party against them to that extent. [Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 869-876; Dec. Dig. 230.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. COSTS 240-SEVERAL CLAIMANTS-AD- | other claimants were satisfied therefrom. VERSE POSITION-APPEAL. Neither will they be awarded costs against the contractor's surety, since as between them and such surety there was no dispute. [Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 922-926; Dec. Dig. 240.] Department 1. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge. Action by the City of Portland, on the relation of the Van Emon Elevator Company, and the Van Emon Elevator Company, against the American Surety Company of New York and others, Title Guaranty & Surety Company and others, and the contractor for whom they were surety, to recover for materials furnished in the erection of a building. The Western Electric Company and others were joined as materialmen and subcontractors for the purpose of determining and adjusting their rights of participation in the unpaid balance of the contract price. From a decree of the circuit court denying it participation until the claims of the other materialmen were satisfied, the Western Electric Company appealed, securing a reversal on that point. On motion by defendant Westinghouse Pacific Coast Brake Company to modify the decree, so as to allow it costs against appellant, Western Electric Company, and respondent Title Guaranty & Surety Company. Motion overruled. See, also, 153 Pac. 786. Moser & McCue and Wm. A. Williams, all of Portland, for appellant. W. P. La Roche, City Atty., for respondent city of Portland. Reed & Bell, of Portland, for respondent Van Emon Elevator Co. Kollock & Zollinger, of Portland, for respondent Title Guaranty & Surety Co. Chas. J. Schnabel and J. B. Ofner, both of Portland, for Westinghouse Pacific Coast Brake Co. J. A. Beckwith, of Portland, for A. G. Electric & Manufacturing Co. The Western Electric Company appealed, serving notice on all other parties to the suit, secured a reversal of the decree of the circuit court and established its right to participate in the balance unpaid of the contract price and to recover from the contractor's surety. The decree of this court awarded costs and disbursements in favor of the Western Electric Company against the Title Guaranty & Surety Company, but denied such indemnity to all other parties. The defendant Westinghouse Pacific Coast Brake Company now moves for a modification of the decree so as to allow it costs and disbursements against the appellant, Western Electric Company, and the Title Guaranty & Surety Company. [1] Let it first be set down that in equitable proceedings the allowance of costs and disbursements rests in the discretion of the court. [2-4] As influencing the exercise of this prerogative in this instance, it will be observed that the decree of the circuit court in favor of all the claimants except the appellant Western Electric Company excluded the latter from participation in the city fund until the claims of the former were satisfied. In this court this preference was overturned, and the appellant was admitted to share in the fund like all other claimants. They were proper and necessary parties to the appeal, and the appellant prevailed against them in that respect. This is a sufficient reason for denying any of them costs or disbursements against the appellant. It might properly have been ground for awarding costs against them. There was no dispute in this court between them and the Title Guaranty & Surety Company; hence no equitable ground exists here for giving any of them costs or disbursements against it. The principal dispute before us was between the Title Company and the Western Company wherein the latter contended for the allowance of its claim against the former which had been wholly denied by the circuit court. Having succeeded in establishing its entire demand against the Title Company, it would ill accord with equitable considerations, in the absence of any unusually differ BURNETT, J. Under a clause of the charter of the city of Portland the relator instituted a suit against a contractor for the erection of a city building and his surety to recover for materials furnished by it and incorporated in the structure. Other materialmen and subcontractors were made defend-ent conditions, to deny costs in favor of the ants, so that, among other things, their rights appellant and against the Title Company. to participate in the balance of the contract In the adjustment of costs in this court the price remaining unpaid and in possession of other claimants fared quite as well as they the city might be determined and adjusted. had any reason to expect and must be conThe circuit court denied relief to the Western | tent. Electric Company, a defendant materialman, as against the contractor's surety, the Title Guaranty & Surety Company, and postponed its participation in the city fund until all The motion is overruled. MOORE, C. J., and McBRIDE and BENSON, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (89 Wash. 104) complete contract between the parties and spec CARKONEN v. COLUMBIA & P. S. R. CO. ifying highway paving brick at $17.85 per thou (No. 12325.) (Supreme Court of Washington. Jan. 7, 1916.) On motion for rehearing. nied. sand net, evidence for the buyer that the brick actually delivered to him was No. 2 brick at $13.75 per thousand was admissible, as the buyer in a suit for the purchase price of goods may show that they were not what he contracted for. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 473-491; Dec. Dig. 181.] Rehearing de- 3. SALES 285- BREACH OF WARRANTY ACCEPTANCE-RIGHT TO DAMAGES. For former opinion, see 150 Pac. 1162. Brady & Rummens, of Seattle, for appellant. Farrell, Kane & Stratton and Stanly J. Padden, all of Seattle, for respondent. In a seller's action for the price of brick sold and delivered as provided by a shipping order constituting a complete contract between the parties warranting that the brick would be highway paving brick, the buyer, who had accepted and used the brick delivered without notifying the seller, before the action, that they were of a quality inferior to that contracted for, and who was not himself seeking to rescind the contract, was entitled to set off the difference in price between the quality warranted and the quality actually received. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 806-808, 810; Dec. Dig. 285.] 4. SALES 179 RIGHT TO INSPECTION PER CURIAM. Respondent has applied for rehearing en banc, and urges, among other things, that the motion for judgment notwithstanding the verdict was granted before the decision of this court in Forsyth v. Dow, 81 Wash. 137, 142 Pac. 490, which was decided August 14, 1914, while the notice of appeal herein was filed June 15, 1914. We DAMAGES FOR INFERIOR QUALITY. make this additional statement in justice to ing for an inspection, but containing no warWhere goods are sold, by contract providcounsel for respondent, that it may not ap-ranty, the buyer's right to recover damages for pear that the making of the motion at such time was a careless oversight of a question of practice on the part of counsel. It is also urged that we should have followed the precedents set in Pierce v. Seattle Electrie Co., 83 Wash. 141, 145 Pac. 228, and Boyce v. Chicago, Milwaukee & Puget Sound Ry. Co., 82 Wash. 204, 144 Pac. 27, decided after the Forsyth Case, in which cases we for the time being suspended the operation of the rule established in the Forsyth Case, because of the fact that the practice condemned by the Forsyth decision had not always been understood, and the cases cited were pending when the Forsyth Case was decided. Such was true in this case also. But the great number of such cases coming here has impelled us to adhere to the rule established by the Forsyth Case; otherwise the continual exceptions would require endless distinguishing decisions, or result only in additional confusion. Hence we have decided to hereafter in all cases hold to the rule adopted in the Forsyth Case. (89 Wash. 141) PETERSON et al. v. DENNY-RENTON CLAY & COAL CO. (No. 12518.) (Supreme Court of Washington. Jan. 8, 1916.) 1. EVIDENCE 442-PAROL EVIDENCE-CON TRACT OF SALE. Where a shipping order for brick was upon its face a complete contract between the parties, covering all the terms of the order, the buyer's offer of parol evidence to prove a different contract, not tending to establish fraud in the procurement of the shipping order but only to modify it, was inadmissible. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1874-1897; Dec. Dig. 442.] 2. SALES 181-ACTION FOR PRICE - EVIDENCE. In an action for the price of brick sold under a shipping order constituting on its face a defects, etc., does not survive his acceptance after opportunity to discover such defects, unless notice is given to the seller, or the buyer returns or offers to return the goods. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 456-468; Dec. Dig. 179.] Department 2. Appeal from Superior Court, King County; John E. Humphries, Judge. Action by the National Surety Company against Andrew Peterson, the Denny-Renton Clay & Coal Company, and others, with cross-action by the Denny-Renton Clay & Coal Company. Judgment for the DennyRenton Clay & Coal Company against Peterson and the National Surety Company, and they appeal. Reversed and remanded. John W. Roberts and George L. Spirk, both of Seattle, for appellants. Ballinger, Battle, Hulbert & Shorts, of Seattle, for respondent. MORRIS, C. J. This is an appeal from a judgment in favor of the Denny-Renton Clay & Coal Company, respondent herein, against Andrew Peterson for the price of a quantity of paving brick, bought by Peterson from the company and used by him in building a portion of state highway No. 4, north of which he held a contract with King counof the city of Seattle, for the construction ty. After the contract was completed a number of liens were filed against the work, and the National Surety Company, surety on Peterson's bond to the county, instituted this action to have determined the rights of the various lien claimants to the funds in the hands of the county commissioners due to Peterson. The respondent was, among others, named as defendant, and appeared by answer and cross-complaint, seeking to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes recover a balance of $40,836.35 claimed to, fused, whereupon Peterson sought to show be due on the brick purchased from it by the circumstances under which the shipping Peterson. Peterson admitted a balance of $27,152.58 due the respondent, and made tender of that amount, but denied the balance claimed by the company. To prove the contract of sale the company introduced over objection a shipping order which reads as follows: order was signed, to establish that it was not a complete contract, but only an order to ship brick previously contracted for. This offer was likewise refused. The ruling of the trial court in excluding this evidence is assigned as error. The shipping order was upon its face a complete contract be Note by G. W. P. (Will want brick in about 3 weeks from date and then fully 40,000 per day steady shipment. Will advise several days in advance.) Original. Credit 0. K. T. W. L. Notice to Factory: If any portion of this order cannot be filled as specified, advise this office in writing immediately on receipt of order. Price Seventeen dollars & twenty-five cents per thousand Net. ($17.25) Terms. Net cash on or before the tenth of the month following date of shipment. Purchaser Rlease Note: We hand you herewith duplicate copies of your valued order as same has been entered for delivery by us. If same is correct, please sign and return original to us and keep duplicate for your records. If not correct, please advise stating wherein an error appears. Note: All contracts, sales and deliveries are contingent upon delays caused by fire, strikes, accidents, floods, carriers and other conditions beyond our control. Denny-Renton Clay & Coal Co. Date Sept. 22, 1913. [Sign here.] Andrew Peterson. the order, and, as the offer of testimony to prove a different contract did not tend to establish fraud in the procurement of the shipping order, but only to modify it by parol testimony, the trial court held correctly that the evidence was inadmissible. Peterson sought to show that this shipping, tween the parties covering all the terms of order was not his contract with the brick company, but that he had contracted with it for a quality of brick known as No. 2, at a price of $13.75 per M., and had actually received and used that kind of brick in the construction of the road. All his offers of such testimony were refused by the trial [2] A price list of the respondent was incourt, on the ground that the shipping or- troduced in evidence showing the price of der was a written agreement constituting No. 2 brick as $13.75 per thousand, and the the contract of purchase between the par- amount tendered in court by Peterson would ties, and oral testimony could not be re- be the correct amount due the respondent ceived to vary or contradict the terms there- for the brick delivered if it was No. 2 of. At the conclusion of the testimony and brick. Peterson made offers to prove by nuoffers to prove each party challenged the merous witnesses that the brick actually desufficiency of the evidence to sustain a judg-livered to him by respondent was No. 2 ment for the adverse party, and moved for brick, and not highway paving brick, as judgment. The trial court thereupon took provided for in the shipping order. The trial the case from the jury and entered judg- court refused this offer, and this, we think, ment for the respondent and against both was error. It would seem a travesty on National Surety Company and Peterson. justice to hold that a party could not show [1] By his offers of testimony Peterson in a suit to recover the purchase price that sought to show that prior to the signing of the article delivered was not the article the shipping order he had entered into a contracted for, but one of inferior quality written contract with the respondent for and less value. It would be taking away the purchase of No. 2 brick. This contract a defense of litigants that has never been was not produced at the trial; counsel stat- questioned by the courts. The authorities |