Perlus v. Market Investment Co.

Citations

• 95 Wash. 484
• 164 P. 65
• 1917 Wash. LEXIS 830

Syllabus

<p>Appeal — Review—Harmless Error — Pleadings. Error cannot be predicated upon striking portions of the complaint in the absence of a showing of material prejudice.</p> <p>Pleading — Reply—Departure—Landlord and Tenant. A reply constitutes a departure from the complaint and authorizes judgment on the pleadings, where the complaint was for damages for a lessor’s breach of a lease in failing to make alterations and for the return of rent paid, and upon denial and counterclaim for rent, the reply alleged a settlement and an abrogation of the lease by reducing the rent and later giving rent free until the lessor complied with the terms of the lease.</p> <p>Pleading — Amendment—Discretion. It is not an abuse of discretion to refuse leave to file an amended reply where the complaint had been amended three times and the reply was so inconsistent that one or the other could not be true.</p> <p>Set-Oee and Counterclaim — Waiver—Judgment on Pleadings. In an action against a lessor for breach of a lease, defendant cannot assert a counterclaim for rent, after moving for judgment on the pleadings on the ground that plaintiff’s reply, setting up a settlement and abrogation of the lease, constituted a departure in the pleadings.</p> <p>Costs — Disbursements. The cost of preparing copies of ordinances is not a taxable item, where the ordinances were not in issue in the pleadings or introduced in evidence.</p> <p>Same. The cost of preparing a plat to be used at the trial is not a taxable item.</p>