Smith Sand & Gravel Co. v. Corbin

Citations

• 102 Wash. 306
• 173 P. 16
• 1918 Wash. LEXIS 951

Syllabus

<p>Pleading—Amendments — After Retrial — Counterclaim After Admissions. Under Rem. Code, § 273, permitting a defendant to set forth as many defenses and counterclaims as he may have, and Id., § 303, authorizing the court to allow amendments, it is discretionary to allow amendments to an answer, upon retrial after remand from the supreme court.</p> <p>Same—Amendments — New Defense — Consistency — Construction. An amendment to an answer setting up a counterclaim for abandonment and breach of contract, not made on the former trials, is not inconsistent with the original answer admitting a specified sum as due for work done under the contract, and offering to submit to judgment therefor; since the amendment contained no denials of the original admissions.</p> <p>Damages—Breach of Contract—Measure of Damages—Cost of Procuring Performance. Where, upon breach of a contract for the removal of rock, the owner made a new contract on the same terms with a third party, who refused to carry it out .because he was losing money, the owner had an election to hold the third party for damages or to make a new contract with him agreeing to pay him a greater sum; and having elected the latter, his measure of damages for the breach of the original contract was the reasonable and necessary expense of procuring completion of the work by another, which was the sum paid the third party, where it appears from the evidence that it was not unreasonably high and was a reasonable price.</p>