Reynolds v. Dickson

Citations

• 48 Wash. 407
• 93 P. 910
• 1908 Wash. LEXIS 882

Syllabus

<p>Pleading — Demurrer to Counterclaim — Waiver. A demurrer to a counterclaim, on the ground that it did not arise out of the same transaction as the cause set out in the complaint, is waived by the admission, without objection, of evidence in support of the counterclaim.</p> <p>Setoff and Counterclaim- — Claims Arising From Same Transaction. In an action to rescind a sale and cancel a chattel mortgage given by the plaintiffs, a counterclaim setting up the mortgage and seeking its foreclosure is so connected with the cause of action that it may be properly interposed.</p> <p>Sales — Rescission by Vendee — Fraud—Evidence — Sufficiency. Proof of fraud in the sale of a stock of goods, in that the invoice price was concealed and misrepresented by the vendors, is not sufficiently definite and convincing, where it appeared that, although the vendor’s invoice book could not be found, from which the amount of goods on hand at the time of the sale could have been ascertained, the vendees had been in possession for five months, selling and adding to the stock, and keeping no account which would show what proportion of the goods had been sold, and there was no testimony showing fraud or conspiracy, and from the whole evidence the court could only hazard a guess as to the actual amount of goods delivered.</p>