Hare v. Winfree

• Decision Date: 07 October 1924
• Docket Number: 18611.
• Citation: 131 Wash. 138,229 P. 16
• Court: Washington Supreme Court
• Parties: HARE v. WINFREE.

229 P. 16

131 Wash. 138

HARE v. WINFREE.

No. 18611.

Supreme Court of Washington

October 7, 1924

Department 2.

Appeal from Superior Court, Spokane County; Blake, Judge.

Action by Katherine Hare against W. H. Winfree. From judgment awarding her insufficient relief, plaintiff appeals. Affirmed.

A. G Starkey, of Spokane, for appellant.

Allen Winston & Allen, of Spokane, for respondent.

PEMBERTON J.

On the 22d day of June, 1923, appellant instituted this action against respondent for the recovery of $110 due for the month of June as rental for an apartment in a building in Spokane belonging to appellant. On July 12, 1923, respondent made a motion to strike out certain portions of the complaint. This motion was granted and an amended complaint served on the 26th day of September, 1923, and thereafter, on leave of court, an amended and supplemental complaint was filed, including an additional $110 for the month of August.

The answer of the respondent offered as an affirmative defense to the amount due for the month of August the allegation that appellant on August 7, 1923, after the rental for the month of August was due and unpaid, had instituted a suit for $110 for the July rent, and a judgment was entered and satisfied on August 29, 1923.

The trial court granted judgment for the rental for the month of June, and refused to allow the rental for the month of August under the theory that appellant had waived or abandoned any claim for the August rent which was then due at the time of the filing of the suit for the amount due for the month of July. From the judgment this appeal is taken.

Appellant relies principally upon the case of McDole v McDole, 106 Ill. 452, which apparently sustains her contention.

Our attention is also called to the case of Helsley v. American Mineral Production Co., 118 Wash. 571, 204 P. 190. In this case the court held that the bringing of an action for the payment of a definite sum in case was not a bar to the bringing of an action upon the same contract for the failure to pay certain accounts. In that case we said:

'Nor is there any splitting of causes where the demand which is the subject of the second action was not due at the time of the first action.' 1 C.J. 1108.

'It may be litigated as often as an independent cause of action arises which, because of its subsequent creation, could not have been litigated in the former suit, as the right did not then exist.' Harsin v. Oman, 68 Wash. 281, 123 P. 1.

In the case at bar the...