' The plaintiff (respondent) in its complaint, filed June 28, 1950, alleges that it is a Washington corporation with its principal place of business at Spokane, Washington, and that the defendants are co-partners doing business under the firm name of Selway Cedar. The action is against the partnership and against the partners individually. In its first cause of action the plaintiff seeks judgment on a promissory note, dated April 20, 1950, due on demand, for the sum of $4,255 with interest and reasonable attorneys’ fees. The note is executed by thе partnership and by the partners individually. The second cause of action is a claim for $641.38 for merchandise sold and delivered to the defendants.
An attachment was issued and levied upon the interest of one of the partners, Lucy Thomas, in certain real estate in Latah County, and upon payments due to her on an escrow contract for the sale of the real estate to one Andrew T. Cox. On August 8, 1950, the defendants filed a petition in which they allege that there was a balance of $57,000 unpаid on the escrow agreement, and that the purchaser had obtained a loan upon the lands involved and other lands and desired to pay up the con *394 tract and complete the transaction, but could not do so because of the аttachment. The petitioners ask the court for an order directing the escrow holder to hold $7500 of the amount due on the contract as security under the attachment and release the attachment upon the lands and remaining moneys. On August 14th an order was entered reciting that $7000 had been deposited in court by the defendants in lieu of the attachment and discharging the attachment.
-In their amended answer the defendants admit the corporate capacity of the plaintiff, their own relationshiр as partners, and husband and wife relationships as pleaded by the plaintiff, and deny generally the other allegations of the first and second causes of action. As a second defense, defendants allege that in May and June, 1950, they negotiated with their creditors, among whom was the plaintiff, for a reduction in the amount of their various claims in the event the escrow agreement (upon which there was then an unpaid balance of $77,000) could be reduced to - cash and immediately paid off, and proposing a reduction in the balance thereon to $65,000 as an inducement to Cox; that the reduction sought would be for the purpose of partially compensating defendants for $12,-000 loss occasioned by the proposed discount of the еscrow agreement; that the plaintiff agreed to accept the sum of $4300 in full for its claims; that Lucy Thomas agreed with Cox to reduce the balance on the escrow contract in return for full payment; that plaintiff agreed to await the paymеnt from Cox for the payment of its claims; and that the note and account claimed by plaintiff “were supplanted by a new and different contract for the payment of $4300 as soon as Andrew T. Cox could obtain the said moneys from a loan upon the еscrow lands and his lands.”
“As a Third and Separate Defense and Counterclaim”, the defendants further alleged that the plaintiff, in violation .of the settlement agreement and to prevent its consummation, brought this action, attached the property and the escrow contract; through its agents wrote letters and talked to persons and agencies having to do with the loan in an attempt to prevent the money being raised; caused moneys far in excess of its claims to be withheld for its security; and prevеnted the completion of negotia-v tions for a considerable time. Defendants further allege that plaintiff’s action prevented them from getting needed financing to commence the operation of their sawmill near Lowell, Idaho, and delayed the operation thereof for a period of approximately three months, to their damage for loss of profits in the sum of $15,000; that because of the breach they were caused to defend this action and to pay attorneys’ fees and costs to their damage in the sum of $1500; that plaintiff’s actions were malicious and damaged defendants’ reputation and credit in the sum of $10,000; and that their credit has been damaged so they were unable to hire men for the operation of their sawmill, to their damage in the sum of $5000. *395 In their prayer the defendants ask judgment for $31,500.
Plaintiff's demurrer to the third defense and counterclaim, for insufficient facts, was sustained, and its motion to strike for insufficient facts and on the ground that it was filed without leave of court was granted. Upon the cause being called for triаl the court heard arguments by counsel upon the plaintiff’s demurrer and motion to strike the second defense. In the course of this argument, counsel for defendants argued that novation was pleaded in that Mrs. Lucy Thomas had been substituted as plaintiff’s debtor in рlace of the partnership as a result of the settlement agreement. The court sustained the demurrer and granted the motion and the trial proceeded upon the issues raised by the plaintiff’s complaint and the defendants’ general denial. At the opening of the trial defendants made an offer of proof by which they again proposed the so-called settlement agreement as a defense. This was stricken. The plaintiff offered proof of the note, attorneys’ fees, and aсcount and rested.
The defendants then moved for leave to amend their answer to allege the want of the capacity of the plaintiff, on the ground that the plaintiff’s evidence showed that the note and account arose out of “doing business in this state”, and that plaintiff had not qualified under the statute. The denial of this motion was not error. It appears on the face of the complaint that the plaintiff is a foreign corporation. Failing to raise the issue by demurrer or answer the defendаnts have waived plaintiff’s want of capacity to maintain the action. Marshall Field & Co. v. Houghton,
The defendants made extensive offers of proof intended to sustain the affirmative defense of settlement and novation, and the counterclaim. These offers were rejected by the court, and this is assigned as error. It is obvious that, if the action of the court in sustaining the general demurrers and striking the affirmative defense and counterclaim was correct, then its action in rejecting evidence offered in support of such pleadings was also сorrect. We shall, therefore, examine the affirma
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tive defense and counterclaim to determine their sufficiency. The affirmative defense alleges an agreement on the part of the part of the plaintiff to accept a smaller sum than is due upon the note and account in full satisfaction of these obligations. Such an agreement (so long as it remains executory) is void for want of consideration. Marysville Development Co. v. Hargis,
We now consider the counterclaim. Sinсe defendants do not contend that the attachment was wrongful, and since the record shows that it was not discharged on the ground that the plaintiff was not entitled thereto, and judgment on the merits having been entered for the plaintiff, defendants could not interрose a counterclaim for wrongful issuance or levy of the attachment within the rule of Willman v. Friedman,
From this it appears that defendants treat the counterclaim as an action for damages for breach of thе novation and
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settlement agreement. As we have seen, the allegations are insufficient to establish either a settlement or a novation. If the allegations of malicious conduct on the part of the plaintiff and its agents in pursuing the attachmеnt were intended as a cause of action for abuse of process or malicious prosecution, this would appear not to he a proper subject of counterclaim. Harshbarger v. Rankin,
Appellants also assign the action ■of the court in refusing to allow them to ■continue and complete offers of proof to ■establish the affirmative defense and counterclaim which the court had held demurrable, and had striсken, or to allow them to have exhibits intended to support such -pleadings marked as rejected. The pleadings being insufficient, these rulings were -not erroneous. In making the offers, defendants’ counsel asserted that he did so to make a record for rеview on appeal. Such offers were unnecessary for that purpose. The rulings of the court in sustaining the demurrers and motions to strike from the amended answer, the affirmative defense and counterclaim, are properly before this court fоr review, these pleadings not having been superseded by amended pleadings. Obviously, therefore, no offers of proof were necessary to preserve appellants’ right to a review of the questions raised by these pleadings. While the sustaining of a general demurrer is sufficient to eliminate a pleading which does not state a cause of action or defense, striking such pleading is not error. Cowen v. Harrington,
At the dose of all of the evidence the court directed a verdict in favor оf the plaintiff. This was proper. Bowman v. Bohney,
Judgment affirmed. Costs to respondent.