Strang v. Person

Citations

• 108 Wash. 503
• 185 P. 944
• 1919 Wash. LEXIS 945

Syllabus

<p>Pleading (72, 147)—Judgment on Pleadings—Admission. Under Rem. Code, § 278, providing for judgment on the pleadings on plaintiff’s failure to reply, read in connection with other parts of the practice act allowing amendments, relief from defaults, and for trial on the merits when justice demands it, a reply admitting the mutual rescission of an executory contract for the sale of lands does not conclusively presume an obligation to return the purchase price so as to entitle defendant to judgment on the pleadings.</p> <p>Vendor and Purchaser (43, 44, 159)—Mutual Agreement—Repayment of Price. A mere mutual rescission does not conclusively presume an agreement to return the purchase price, as a contract is implied and the return may have been waived.</p> <p>Pleading (72, 149)—Reply — Admissions — Judgment on Pleadings. Where defendant set up a mutual rescission of an executory contract for the sale of lands, a reply admitting that the contract was '‘rescinded and forfeited” and denying that defendant was damaged, is not such an unqualified admission of the facts as to entitle plaintiff to judgment on the pleadings, after a trial on the merits, in view of the power of the court to relieve from defaults or consider the pleading amended to conform to proofs.</p> <p>Pleading (104, 121)—Amendments—-To Conform to Proof — Reply. Where a trial on the merits was entered into and proceeded without objection to the form of a reply containing an admission, upon oral objection at the trial, the court could consider it amended to conform to proofs, and did so in effect by overruling a motion for judgment and determining the case on the merits.</p> <p>Appeal (267)—Record — Evidence — Necessity — Allowance of Amendments to Pleadings. In the absence of the evidence in the record, error or abuse of discretion in treating the pleadings amended to conform to the proofs cannot be reviewed.</p>