Clemmons v. McGeer

• Citation: 63 Wash. 446,115 P. 1081
• Parties: CLEMMONS et ux. v. McGEER.
• Decision Date: 03 June 1911
• Court: United States State Supreme Court of Washington

115 P. 1081

63 Wash. 446

CLEMMONS et ux. v. McGEER.

Supreme Court of Washington

June 3, 1911

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by J. S. Clemmons and wife against George H. McGeer. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Dunbar C.J., and Gose, J., dissenting.

J. B Keener, for appellants.

Ellis Fletcher & Evans, for respondent.

PARKER J.

The question involved in this appeal is whether or not the trial court erred in dismissing the case upon the ground that the plaintiffs' reply to the affirmative defense of the defendant's answer constituted a departure from the allegations of the complaint.

The plaintiffs allege in their complaint, in substance, that they are the owners of certain land in Tacoma; that the defendant claims some interest therein adverse to them; that such claim of the defendant is without any right whatever; and pray that they be declared to be the owners of the land, and that the defendant have no estate or interest therein. The defendant in his answer denies the ownership of the plaintiffs in the land, and alleges as an affirmative defense, in substance, that he acquired title to the land by a good and sufficient warranty deed from the plaintiffs, under which he claims title thereto. The plaintiffs replying to the affirmative allegations of the answer allege, in substance, that prior to the date of the deed under which defendant claims title to the land, they entered into a contract with one Bell, by which he was to furnish the material and erect a building for them upon other land belonging to them, for which he was to be paid in part by a conveyance of the land here involved; that when the building was partially constructed Bell requested a conveyance of this land in part payment thereof, representing to the plaintiffs that the material furnished for and work done upon the building was paid for to the extent of $725, the agreed value of the land here involved, and which Bell then asked to have conveyed to him; that relying upon the representation of Bell the plaintiffs executed a deed for the land leaving the name of the grantee blank; that Bell was then unable to procure receipts for more than $265 showing payment for the material furnished for and labor upon the building; that Bell then requested the plaintiffs to leave the deed with him until the next morning when he would produce receipts aggregating $725, and relying upon this representation the plaintiffs did leave the deed with Bell; that upon calling at Bell's office the next morning for the purpose of receiving the receipts they failed to find him; that they thereafter repeatedly called at his office but never found him, and never received any further receipts showing payment towards material and labor upon the building; that thereafter Bell took the deed to the defendant and obtained a loan from him in a sum not greater than $650, and as security therefor inserted the name of the defendant as grantee in the deed and delivered it to him; that thereafter plaintiffs had to expend large sums in protecting their property from liens incurred in the construction of the building; that the deed was never delivered to Bell except in the manner stated; and 'that if said defendant George H. McGeer has any claim whatever, and plaintiffs deny that he has any claim at all, it is nothing more than a mortgage subsequent and junior to the interests of plaintiffs. * * *' The pleadings being in this condition the cause was called for trial, when counsel for the defendant moved the court for a dismissal upon the grounds, among others, 'that the reply shows an absolute departure from the cause of action attempted to be set up in the complaint and the reply pleads facts which show that the plaintiffs have no cause of action as pleaded in the complaint.' This motion was granted, judgment entered accordingly, and the plaintiffs have appealed.

It has become the settled law of this state in keeping with the general rule elsewhere that a plaintiff cannot, over the objections of his adversary, by any pleadings subsequent to his complaint, bring into the action for adjudication any cause of action different from that set forth in his complaint. Distler v. Dabney, 3 Wash. 200, 28 P. 335; Bell v. Waudby, 4 Wash. 743, 31 P. 18; Clark v. Sherman, 5 Wash. 681, 32 P. 771; Osten v. Winehill, 10 Wash. 333, 38 P. 1123; Gile v. Baseel, 38 Wash. 212, 80 P. 437; Smart v. Burquoin, 51 Wash. 274, 98 P. 666; Spokane Grain Co. v. Great Northern Express Co., 55 Wash. 545, 104 P. 794. The rule is stated in 6 Ency. Pl. & Pr. p. 461, as follows: 'A plaintiff in an action must recover, if at all, upon the cause of action stated in his declaration or complaint, and a replication or reply that sets up a different cause of action from that declared on is bad for departure. The office of a replication or reply is to meet the allegations of the plea or answer, and it cannot, in ordinary cases, introduce, as a basis for affirmative relief, matter enlarging the grounds upon which recovery was originally sought. This can be done only by amendment of the original pleading.'

It seems to us that the allegations of this reply affirmatively show that appellants are not entitled to have their title quieted as against the claim of respondent, since those allegations show that respondent has a valid conveyance for the land amounting at least to a mortgage securing a loan to Bell, and that to this extent at least his interest is superior to that of appellants. Appellants executed the deed with the name of the grantee left blank. In this condition it was delivered into the hands of Bell by appellants,...