113 Wash. 259 | Wash. | 1920
The purpose of this action was to foreclose a real estate mortgage. The principal defendant was Georgia A. Harris, made a party in her individual capacity as well as the duly qualified administratrix of the estate of William H. Harris, deceased, who was her husband. The other defendant disclaimed all interest in the controversy. The action will he treated as though Mrs. Harris, in the two capacities mentioned, was the only party defendant.
In January, 1915, the respondent agreed to sell to Mr. Harris lot 15, in block 2, Hazelwood, in King-county, and furnish lumber for the construction thereon of a small store building. After the building was erected, two mortgages were given covering- the lot and the building. One for $350, which was the first mortgage, was made tó a Mr. Yoakum. The second mortgage, for the sum of $350, was made to the respondent. The present action is to foreclose the second mortgage..
From the time the building was erected upon the lot until the date of his death, September 2, 1917, Mr. Harris conducted a hardware business therein. The counterclaim pleaded was for items of merchandise furnished the respondent and labor performed for him. The offset pleaded against the counterclaim was for work performed, materials furnished, and money advanced to Mr. Harris subsequent to the execution of the mortgage. The court found the balance due upon the notes secured by the mortgage to be the sum of $417.64, including both principal and interest, and foreclosure was directed for this sum.
The appellant presents some questions of fact as well as questions relating- to the introduction of evidence. Without reviewing these in detail, it may be
The first question of law to be considered is whether, in view of the fact that the items covered by the offset pleaded in the reply has not been embodied in and presented as a claim against the estate of Mr. Harris, deceased, they could properly be pleaded as an offset. No affirmative judgment was allowed on these items, but they were used only for the purpose of overcoming the appellant’s counterclaim to the extent to which they were allowed. The rule is that, in an action brought by an executor or administrator, a demand against the estate may be offset against the plaintiff’s demand without a claim having been first presented therefor. Fishburne v. Merchants’ Bank of Port Townsend, 42 Wash. 473, 85 Pac. 38, 7 Ann. Cas. 848; Nelson v. Western Steam Nav. Co., 52 Wash. 177, 100 Pac. 325.
The appellant argues that these cases are not applicable because this was an action not brought by the executor or administrator. This contention, however, overlooks the fact that the appellant denied the execution of the mortgage and pleaded a counterclaim upon which she sought affirmative relief. The respondent’s offset was to meet this demand. Cases which hold that an action cannot be brought against an estate upon a claim unless it is presented within the time and in the manner prescribed by the statute are not in point upon this question.
It is also objected that the offset should not be considered because pleaded in reply. In this connection, the rule is invoked which will not permit matters to be pleaded as an offset to a counterclaim in the answer
The appellant invokes the rule that cross-demands existing between two parties cannot operate or be treated as payment with regard to each other without the express assent of both parties. As we view the case, this rule is not applicable to the facts. Even though cross-demands cannot be treated as payment without the express assent of both parties, this does not mean that the demand of one may not be offset against the other.
The judgment will be affirmed.
Holcomb, C. J., Mount, Mitchell, and Tolman, JJ., concur.