Davis v. Seattle National Bank

Citations

• 19 Wash. 65
• 52 P. 526
• 1898 Wash. LEXIS 319

Syllabus

<p>RES JUDICATA — TO BE DETERMINED BY THE ISSUES — PLEADING — INCONSISTENT DEFENSES — ACCOUNT STATED.</p> <p>Where the issue has been raised and determined in an action by a bank upon a note and oyer draft that defendant, who had served the bank as attorney, was entitled to nothing on a counterclaim for services rendered, an assignee of the bank who has taken all its assets in consideration of discharging all its liabilities is entitled to plead such judgment as res judicata in an action against it on account of such services brought by an assignee of the attorney, who acquired his claim pending the former action.</p> <p>In determining whether the subject matter of litigation is res judicata as to parties and their privies, the court is governed only by the issues and judgment in the prior action, and cannot consider grounds for the judgment which are not contained in the record.</p> <p>A defendant may deny liability and at the same time plead a counterclaim or offset, without subjecting himself to the charge of pleading inconsistent defenses, if there is no direct contradiction in the special facts pleaded.</p> <p>The fact that a statement of account had 'been delivered to defendant and the same retained a long time without objection, would not make it an account stated determining the amount due from defendant, when there was no liability existing on the defendant’s part.</p>