Yeisley v. Smith

• Decision Date: 22 December 1914
• Docket Number: 12149.
• Citation: 144 P. 918,82 Wash. 693
• Court: Washington Supreme Court
• Parties: YEISIEY v. SMITH.

144 P. 918

82 Wash. 693

YEISIEY v. SMITH.

No. 12149.

Supreme Court of Washington

December 22, 1914

Department 1. Appeal from Superior Court, Adams County; O. R. Holcomb Judge.

Action by W. W. Yeisley against W. B. Smith. Judgment for the plaintiff, and defendant appeals. Affirmed.

John Truax, of Ritzville, for appellant.

G. E Lovell, of Ritzville, for respondent.

CHADWICK J.

Plaintiff purchased certain lands of the defendant for a stated consideration of $8,045, making a cash payment of $300, and assuming, as a part of the purchase price, two mortgages, taxes, interest and other charges. Thereafter plaintiff undertook to pay the whole amount due. The parties did not agree as to the exact amount owing, and, after certain correspondence and an allowance of a claimed credit of $192, plaintiff forwarded to defendant the sum of $249.45 in full payment. He thereafter demanded a release of the mortgage held by defendant, which was refused.

Defendant, by way of affirmative defense, claimed that there was still due the sum of $192 with interest. To this answer plaintiff made no reply. The court found that the parties had made full settlement; that the item $192 had been considered; that the parties had drawn an account showing that sum as a credit; that both parties had agreed to it after a true statement of the account then existing between them; and that when agreed upon it had been signed by them in writing. The conclusion of the court is sustained by competent testimony.

It is contended, under the authority of Smith v. Ormsby, 20 Wash. 396, 55 P. 570, 72 Am. St. Rep. 110, that the undenied answer stands as a finding of the court. This case, however, falls within a long line of decisions holding that, where a case has proceeded to judgment, we will not consider any defect in the pleadings that might have been cured by amendment, but will, as admonished by Rem. & Bal. Code, § 1752, decide the case on the merits, disregarding all technicalities, and consider all amendments which could have been made as made.

If defendant had made timely objection in the court below by a motion for a judgment on the pleadings or by objection to the introduction of testimony, the court would no doubt have directed the filing of a reply, just as it would have directed an amendment in furtherance of justice. The case was tried out on its merits as if an issue had been formally joined.

We said, in Kelly v. Lum, 75 Wash. 135, 134 P. 819, 49 L. R. A. (N. S.) 1151:

'Objections to technical defects in pleadings, or defects that can be cured by amendment, if they are to avail the objector, must be raised prior to the time the cause is brought on for trial.'

In Said v. Twin City Light & Traction Co., 70 Wash. 585, 127 P. 191, a reply denying 'each and every material allegation of said affirmative defense' was filed. A denial in this form has been held to be no denial by this and other courts. It was contended that the reply was insufficient and did not raise an issue for the jury. We said:

'No motion was made to make the reply more specific, nor for judgment upon the pleadings; and the motion for a directed verdict was not based upon the fact that the reply admitted the facts pleaded in the affirmative answer. All through the

...