Hendelman v. Kahan

Citations

• 50 Wash. 247
• 97 P. 109
• 1908 Wash. LEXIS 705

Syllabus

<p>Pleading — Answer — Admissions — Monet Loaned. An answer as a whole admits that a sum was received by defendants as a loan, where, in an action for money loaned, the answer admits that a portion was to be regarded as a loan, and the claim is then made that the other portion was to be applied upon a board bill due from plaintiff to defendant, and which thereby paid the board bill leaving nothing further due thereon, and a further clause in the answer alleges that no part of the board bill had been paid and that the same is now due and owing, thereby neutralizing the claim that only part of the money was a loan.</p> <p>Trial- — -Misconduct or Judge — Comment on Pacts — Instructions. In an action for money loaned, an instruction that the defendants admitted in their answer that the plaintiff loaned them the two sums of money claimed, is not an unlawful comment on the evidence when it was not an issue in the pleadings; and in any event the same would not confuse the jury where the defendants had the benefit before the jury of their contention that only part of it was received as a loan, and where under the evidence and the whole case the jury must have understood the instruction as meaning that defendants only admitted receiving the money.</p> <p>Limitation or Actions — Accounts—When Not Continuous — Instructions. Upon a counterclaim for a board bill, it is proper to instruct that the lapse of three years would defeat a recovery unless a payment had been made on the liability, without instructing that the statute begins to run only from the close of the account, where the periods covered a number of years and were so infrequent and far removed that they became independent transactions, precluding the idea of a continuous transaction.</p> <p>Continuance — Surprise—Evidence. Upon a counterclaim by defendant for a board bill it is proper to deny a continuance on the ground of surprise by reason of evidence that plaintiff had furnished money to defendants’ young brother,