Boothe v. Bassett

Citations

• 82 Wash. 95
• 143 P. 449
• 7 A.L.R. 145
• 1914 Wash. LEXIS 1473

Syllabus

<p>Appeal — Record—Statement oe Pacts — Certification. A motion to strike a statement of facts because it did not contain all the evidence will be denied, where it was certified to contain all the material facts and all the evidence both oral and in writing, and no amendment was proposed by the respondent.</p> <p>Fraudulent Conveyances — Contracts Arising Out of — Relief. Where plaintiff and defendant acquired property on a joint venture, under an agreement to share the profits equally, and the title was taken in the name of defendant for the primary reason of placing the entire title beyond the reach of the judgment creditor of the plaintiff, a court of equity will not compel a conveyance of a half interest, as the contract was against public policy.</p> <p>Same — Relief—Parties Not in Pari Delicto. In such a case, the rule that equity grants relief from fraudulent transactions if the parties are not in pari delicto does not apply where the actor in the present suit is the one who was guilty of the fraud, the defendant having no intention to defraud plaintiff’s creditors.</p> <p>Pleading — Affirmative Defenses — Waiver—Issues, Proof and Variance. In an action for specific performance, the defense that the transaction was fraudulent and against public policy, is available to defendant' without being specially pleaded as an affirmative defense, where an issue was made by denial of the contract, and the fraudulent nature of the transaction was brought out upon plaintiff’s direct examination and further developed on cross-examination without objection.</p> <p>Appeal — Review—Relief to Respondent — Cross-Appeal—Necessity. In an action for specific performance, and for money had and received where there is no cross-appeal by plaintiff, error in denying plaintiff a money judgment cannot be reviewed on defendant’s appeal from the judgment granting specific performance.</p>