Rockford Shoe Co. v. Jacob

• Decision Date: 31 May 1893
• Citation: 6 Wash. 421,33 P. 1057
• Parties: ROCKFORD SHOE CO. v. JACOB.
• Court: Washington Supreme Court

33 P. 1057

6 Wash. 421

ROCKFORD SHOE CO. v. JACOB.

Supreme Court of Washington

May 31, 1893

Appeal from superior court, Pierce county; F. Campbell, Judge.

Action by the Rockford Shoe Company, a corporation, against A. J Jacob for the price of goods sold and delivered. From a judgment in favor of plaintiff on the pleadings, defendant appeals. Reversed.

Stevens Seymour & Sharpstein, for appellant.

Shank Murray & Dresbach, for respondent.

HOYT J.

The judgment against defendant in this case was rendered upon motion of the plaintiff upon the pleadings, and the only question raised by the appeal of the defendant is as to whether or not the pleadings warranted the construction placed upon them by the court in its determination that, upon the undisputed allegations contained therein, the plaintiff was entitled to recover. The action was brought for goods sold and delivered, and it was alleged in the complaint that the amount to be paid therefor became due on the 1st of February, 1892. The action was commenced on the 25th day of February, 1892. Defendant, in his answer, after making certain denials, made an affirmative allegation, as follows: "And defendant, further answering, alleges that at the time of the commencement of this action there was no sum whatever due and payable by defendant to the plaintiff; that defendant had, prior to the commencement of this action, bought certain goods of plaintiff, which, by the terms and credit given to defendant, became due and payable on or about the 1st day of April, 1892, and not before that time; and that the goods so purchased by defendant were the only goods purchased by defendant of plaintiff for which plaintiff has not been fully paid, and were, as defendant is informed and verily believes and alleges, the same goods described or attempted to be described in the complaint in this action." To this affirmative matter the plaintiff replied as follows: "That plaintiff admits that it extended the time for the payment of the said goods to April 1, 1892, making the same due and payable at said time; wherefore plaintiff prays for judgment against defendant in the sum named in complaint, and that the costs of this action be taxed to plaintiff."

The contention of the appellant is that, upon this affirmative allegation in his answer, and the admission in the reply of plaintiff, it must be held that, at the time of the commencement of the suit, there was nothing due from him to the plaintiff, and that he should have had judgment of dismissal, and for his costs against the plaintiff. The respondent contends that, it not being alleged in said affirmative defense that the time of payment for the...