Irwin v. Buffalo Pitts Co.

Citations

• 39 Wash. 346
• 81 P. 849
• 1905 Wash. LEXIS 869

Syllabus

<p>Pleading—Answer ■—• Admission — Construction — Inconsistent Averments. Express admissions in an answer control direct averments to the contrary, since the pleading must be construed most strongly against the pleader, and in the absence of an amendment evidence contrary to the admission is properly excluded.</p> <p>Pleadings—Amendment—Surprise—Continuance —• Discretion. Where plaintiff relies upon an express admission in the answer and insists upon claiming a surprise, a refusal to allow an amendment except upon condition of a continuance, is within the discretion of the court.</p> <p>Pleading—-Answer—Defenses—When Not Inconsistent—Contracts. In an action upon a written contract to recover commissions for the sale of machinery, a partial defense that the contract con-tamed a provision that ten per cent of any notes taken should he deducted from the commissions, if the note was not paid at maturity and expense was incurred, is not inconsistent with a defense setting up the statute of limitations, settlement, and that the sale was under another contract; and it is error to exclude evidence thereof.</p> <p>Evidence—Letters of Party—Failure to Reply—Attorneys— Authority. The failure of an attorney for collection to reply to letters asserting the debtor’s version of a contract, does not admit their contents, or render them admissible in evidence as implied admissions of his client.</p> <p>Appeal and Error — Review •—■ Trial — Comments •—• Harmless Error. Comments of the court as to the incompetency of letters, at the time of properly excluding them, is not prejudicial error.</p> <p>Evidence—Letters—Competency—Failure to Answer—Admissions—Witnesses—Impeachment. The failure to answer letters or deny the statements therein, does not amount to an admission of the statements, so as to make the letters admissible to impeach testimony to the effect that that the party never admitted the statements; and the letters are properly excluded, even if competent as independent eviden