Green v. Harris

• Citation: 193 P. 690,113 Wash. 259
• Decision Date: 29 November 1920
• Docket Number: 15977.
• Parties: GREEN v. HARRIS et al.
• Court: United States State Supreme Court of Washington

193 P. 690

113 Wash. 259

GREEN v. HARRIS et al.

No. 15977.

Supreme Court of Washington

November 29, 1920

Department 2.

Appeal from Superior Court, King County; R. H. Back, Judge.

Action by Hiram C. Green against Georgia A. Harris, as administratrix of the estate of William H. Harris, her husband, and others. From judgment rendered, the named defendant appeals. Affirmed.

C. T Hardinger, of Seattle, for appellant.

MacKinnon & Schooley, of Seattle, for respondent.

MAIN J.

The purpose of this action was to foreclose a real estate mortgage. The principal defendant was Georgia A. Harris, made a party in her individual capacity, as well as the duly qualified administratrix of the estate of William H. Harris deceased, who was her husband. The other defendant disclaimed all interest in the controversy. The action will be treated as though Mrs. Harris, in the two capacities mentioned, was the only party defendant. In answer Mrs Harris denied that she had executed the mortgage, and pleaded a number of affirmative defenses, one of which was a counterclaim. To the counterclaim the plaintiff by reply plead an offset. The trial court allowed the counterclaim in the sum of $39.51 in excess of the items which it sustained in the offset, and this sum was credited upon the notes secured by the mortgage. The judgment of foreclosure was for the balance due. From this judgment Mrs. Harris appeals.

In January, 1915, the respondent agreed to sell to Mr. Harris lot 15 in block 2, Hazelwood, in King county, and furnish lumber for the construction thereon of a small store building. After the building was erected two mortgages were given covering the lot and the building. One for $350, which was the first mortgage, was made to a Mr. Yoakum. The second mortgage, for the sum of $350, was made to the respondent. The present action is to foreclose the second mortgage.

From the time the building was erected upon the lot until the date of his death, September 2, 1917, Mr. Harris conducted a hardware business therein. The counterclaim pleaded was for items of merchandise furnished the respondent and labor performed for him. The offset pleaded against the counterclaim was for work performed, materials furnished, and money advanced to Mr. Harris subsequent to the execution of the mortgage. The court found the balance due upon the notes secured by the mortgage to be the sum of $417.64, including both principal and interest, and foreclosure was directed for this sum.

The appellant presents some questions of fact, as well as questions relating to the introduction of evidence. Without reviewing these in detail, it may be said that after a careful examination of the evidence we sustain the view of the trial court as to the facts and the rulings upon the admission and rejection of evidence.

The first question of law to be considered is whether, in view of the fact that the items covered by the offset pleaded in the reply had not been embodied in and presented as a claim against the estate of Mr. Harris, deceased, they could properly be pleaded as an offset. No affirmative judgment was allowed on these items,...