Parker v. Parker
| Decision Date | 13 July 1922 |
| Docket Number | 17034. |
| Parties | PARKER et al. v. PARKER. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, King County; Calvin S. Hall, Judge.
Action by Howard Parker and Katie M. Parker against Annie C. Parker administratrix. From judgment for defendant, plaintiffs appeal. Affirmed.
See also, 199 P. 723.
J. L. Corrigan and Million & Houser, all of Seattle, for appellants.
Shank Belt & Fairbrook, of Seattle, for respondent.
This action was originally brought by Howard Parker against the estate of his deceased uncle, to recover upon two promissory notes, for $1,000 each, given by the uncle to Katie M. Parker, the uncle's sister, and mother of Howard Parker. The notes were assigned to Howard Parker for collection. The answer of the estate to the complaint denied the execution of the notes, and pleaded lack of consideration. By order of the court Katie M. Parker was made a party plaintiff. After the introduction of the plaintiff's case upon the trial the estate was given permission to change its answer so as to allege payment of the notes.
The first assignment of error is that the court was wrong in compelling the joining of Katie M. Parker as plaintiff in this action. Assuming that this was erroneous, it did not necessarily prejudice the plaintiff's case, as it presented no new issue, and did not change the conduct of the trial in any manner. This being true, it presents no sufficient reason for the granting of a new trial.
It is next urged that it was error to allow the amendment to the answer, on the ground that the amendment presented a defense which was inconsistent with that presented in the first answer, and the case of Seattle National Bank v. Carter, 13 Wash. 281, 43 P. 331, 48 L. R. A. 177. While it is true that inconsistent defenses are not sanctioned, still, in this case, we have a peculiar situation which would seem to justify the relaxing of so rigid a rule. It is to be remembered that the defendant in the case is a representative of the estate, unfamiliar with the transaction, and was justified in pleading that the notes were not executed and lacked consideration; and, when the proof developed that these defenses were untenable, she was justified in pleading the other defense of payment. No continuance was asked on the ground of surprise. The plaintiffs were not prejudiced in the presentation of what evidence was necessary to sustain their contention, or to answer the defense finally made by the administratrix. A person acting as administratrix of an estate in defense of an action of this kind may not be in such full possession of the facts which surrounded the transaction as would be the parties to it during their lifetime, and the rigid rule we have referred to is properly relaxed in such case.
In proof of the defendant's plea of payment, evidence was introduced that showed that prior to the death of Joseph H Parker, he gave to his sister $1,500 in cash and $500 in Liberty Bonds, which the administratrix claims were in payment of the two notes for $1,000 each, relying upon the presumption that money transferred from one person to another is presumed to be in payment of an obligation between them, where there is no evidence of the intention of the parties, and that this presumption is particularly strong when the amount transferred equals the amount of the indebtedness. The plaintiffs sought to offset this presumption by another which arises by reason of the fact that the promissory notes are still in their possession, these facts giving rise to the presumption that they are not paid. With these contrary presumptions in the case, testimony was introduced on behalf of the plaintiffs from an attorney as to conversations with ...
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...it. It would destroy that equality which it is the obvious purpose of our community property law to conserve.' 'See, also, Parker v. Parker, 121 Wash. 24, 207 P. 1062; Nimey v. Nimey, 182 Wash. 194, 45 P.2d Johnston v. Johnston, 182 Wash. 573, 47 P.2d 1048; In re McGovern's Estate, 181 Wash......
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... ... Marston v. Rue, 92 Wash ... 129, 159 P. 111; Daniel v. Daniel, 106 Wash. 659, ... 181 P. 215; Parker v. Parker, 121 Wash. 24, 207 P ... 1062; Occidental Life Ins. Co. v. Powers, 192 Wash ... 475, 74 P.2d 27, 114 A.L.R. 531 ... ...
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