Bruce v. Foley

• Decision Date: 04 November 1897
• Citation: 50 P. 935,18 Wash. 96
• Parties: BRUCE v. FOLEY.
• Court: Washington Supreme Court

50 P. 935

18 Wash. 96

BRUCE v. FOLEY.

Supreme Court of Washington

November 4, 1897

Appeal from superior court, Pierce county; J. A. Williamson, Judge.

Action by N. B. Bruce against Mary Jane Foley. From a judgment on a verdict in favor of plaintiff, and from an order overruling a motion for new trial, defendant appeals. Reversed.

Johnson Nickeus, for appellant.

Judson Applegate and F. G. Merrill, for respondent.

GORDON J.

The brief of respondent contains a motion to strike the statement of facts because notice of settling the same was not given. It appears from the record, and is conceded by the parties that the statement was regularly filed and served, and that no amendments were proposed or filed within the time limited by law. Under such circumstances, we have held that notice of the settlement of the statement is not required. State v Arthur, 7 Wash. 358, 35 P. 120; Maney v. Hart, 11 Wash. 67, 39 P. 268. Another ground upon which the motion to strike is based is that the certificate does not show that the statement "contains all the material facts, matters and proceedings in the cause," etc. We think the objection is not well taken. Appellant seeks by the appeal to review a single question, which, if decided in her favor necessitates a reversal. She has brought all of the evidence bearing upon that question into the record, and the certificate covers it. This is sufficient. Tompson v. Lumber Co., 5 Wash. 529, 32 P. 536. The motion must be denied.

In 1893 the respondent, by written instrument, leased certain real property to the appellant for a period of five years. This action was instituted to recover damages occasioned by a failure of appellant to keep and perform the covenants of the lease. The trial resulted in a verdict which was followed by a judgment for the plaintiff (respondent). There was a motion for a new trial, upon several grounds,-among others, that the verdict was against the evidence,-which motion was overruled, and the defendant appeals.

At the trial the defendant introduced the record of a former action between the same parties; involving, we think, the identical subject-matter. The record so introduced consisted of the complaint, answer, reply, and judgment in such former action coupled with parol proof of the identity of the parties, etc. Appellant contends that the record so introduced constituted an estoppel and bar to the maintenance of the present action, and that the verdict found against her, in view of such record, was contrary to the evidence, and should have been set aside. This is the sole question in the cause. Against the contention of appellant, respondent urges (1) that the judgment was not pleaded; (2) that the matter in difference involved in the second suit was not directly involved in the first; (3) if admissible at all, the record in the former cause was receivable merely as evidence of a fact, and was not conclusive. As to the first objection urged, it must be conceded that the answer in the case does not set up the prior adjudication; and had the evidence been objected to on the ground that it had not been pleaded, or of variance, it would not have been admissible. We think the rule deducible from all the authorities on code pleading is that the answer must contain allegations of all facts which, when plaintiff's case is established, the defendant must prove in order to defeat a recovery; that a distinct, affirmative defense cannot be given in evidence, over objection, under a general denial, and in such case the defendant is limited to a contradiction of plaintiff's proofs and the disproval of his case. Beaty v. Swarthout, 32 Barb. 293; Griffin v. Railroad Co., 101 N.Y. 348, 4 N.E. 740; Glazer v. Clift, 10 Cal. 303; Dyson v. Ream, 9 Iowa, 51. The only objection offered to the introduction of the record was that "in the former action plaintiff asked for the cancellation of his lease, which is not sought in the present action." Had proper objection been made, however, it would have been discretionary with the lower court to have permitted the answer to be amended; but by neglecting to make such objection the respondent has, we think, waived the right to urge now that it was not pleaded. Coats v. Insurance Co., 4 Wash. 378, 30 P. 404, 850; People v. Manning, 48 Cal. 335. Where new matter, not properly pleaded, is improperly received in evidence on the trial, without objection on the part of the plaintiff, the court, in giving judgment, must take it into consideration. New York Cent. Ins. Co. v. National Protection Ins. Co., 14 N.Y. 85; Coats v. Insurance Co., 4 Wash. 378, 30 P. 404, 850...