Williams v. Ninemire

Citations

• 23 Wash. 393
• 63 P. 534
• 1900 Wash. LEXIS 370

Syllabus

<p>PLEADING-STRIKING OUT IMPERTINENT ISSUES.</p> <p>The action of tbe court in striking out portions of a reply which are not pertinent to the issues raised by the complaint and answer is not error, even if the portions stricken are in response to impertinent matters alleged in the answer.</p> <p>CUSTOMS — EXCLUSION BY CONTRACT.</p> <p>In an action for the price of cattle sold by plaintiff to defendants, in whicn plaintiff alleges a contract for delivery at one point and the defendants allege delivery was to be made at another point, where it was agreed the cattle were to be weighed, evidence of custom is inadmissible for the purpose of showing that, where cattle were sold to be weighed at a designated point, title to the cattle was considered as not passing to the buyer until they had been weighed, since the pleadings show that the point of delivery was a matter of express contract between the parties.</p> <p>SAME-PROOF OF USAGE-OPINION EVIDENCE.</p> <p>The existence of a custom cannot be established by the ' mere opinions of witnesses, but must be proved as any other fact.</p> <p>SALES-DELIVERY — INSTRUCTIONS.</p> <p>In an action to recover the price of cattle sold, in which the point of delivery was an issue, as the cattle were lost between the point of embarkation and the point of destination, an instruction which charges the jury that plaintiff cannot recover unless he prove that the cattle were not only delivered to the defendants at the point of embarkation, but that at the time of such delivery, the title thereto vested in the defendants, or, in other words, that they became the absolute owners of the cattle at that point, is erroneous, since proof of absolute delivery would be proof of transfer of title, while the instruction given would lead the;, jury to believe that something more was required.</p>