Cooke v. Cain

Citations

• 35 Wash. 353
• 77 P. 682
• 1904 Wash. LEXIS 456

Syllabus

<p>Pleadings — Amendment—Mistake in Answer — Necessity oe Affidavits and Notice — Surprise. Where, after sustaining demurrers to defendants’ affirmative defenses, an action based upon a written contract went to trial upon issues raised by general denials, it was not error to permit the defendants to file a trial amendment setting up affirmatively an oral rescission of the contract and the substitution of an oral agreement providing a different consideration which was paid in full, without requiring an affidavit and notice to the plaintiff under. Bal. Code, §4953, where it appeared by sworn statements of the defendants as witnesses that a mistake was made in the first attempt to draw the answer, and the plaintiff had early notice at the trial of the defendants’ claim and defense, and no continuance was asked and no claim made that the plaintiff was surprised.</p> <p>Appeal — Review—Evidence on Trial de Novo. The erroneous admission of testimony is not ground for a reversal where on appeal there is a trial de novo.</p> <p>Evidence — Written Contract — Oral Rescission — Uncorroborated Testimony of a Party — Findings on Conflicting Evidence. It seems that the uncorroborated testimony of a party may establish that a written contract was orally rescinded, the only requirement being that the testimony be “clear, cogent and convincing,” and a finding of a rescission based wholly on oral evidence will not be disturbed upon conflicting testimony, where a corroborating circumstance supports the finding and the trial court had the demeanor of the witnesses for a guide.</p>