50 Wash. 247 | Wash. | 1908
This is an action for the recovery of money alleged to have been loaned by the plaintiff to the defendants. There are two causes of action. The first alleges that $1,000 was loaned at one time, and the second that $200 was loaned at a later date. Judgment was demanded for $1,200 and accrued interest. The defendants answered, admitting the receipt of the money, and they affirmatively alleged that the plaintiff is indebted to them for board and lodging in the sum of $337, and in the further sum of $64.80, for money paid by them in his behalf, making a total of $401.80 which they claim should be deducted from the arriount claimed by the plaintiff. The plaintiff concedes that the $64.80 should be credited to the defendants, but denies that any sum is owing for board. He denies that he was at the home of defendants for as long periods as they allege, and says it was expressly understood that he was there as a guest only. He also interposes the plea of the statute of limitations against the claim for board and lodging. The cause was tried before a jury, and a verdict was returned for the plaintiff in the sum of $1,124.10. Judgment was entered for that amount, and the defendants have appealed.
“That the room and board so furnished by defendants to plaintiff was furnished at plaintiff’s request and was of the reasonable value of $30 per month, making the value thereof the sum of $345; that plaintiff has paid thereon the sum of $8, and that the balance of $337 remains due defendants.”
Thus it was positively averred that the board account “remains due,” which is the equivalent of saying that it is unpaid. If it is unpaid, then no part of the money advanced was applied upon the board account, and it was all loaned in fact. Therefore the effect of the whole answer is to admit that the whole sum was advanced as a loan, and the court did not err in its statement to the jury upon that subject. It is urged that the statement was a comment upon the facts,
It is next urged that the court erred in its instructions on the subject of the statute of limitations. The instruction in effect was that a lapse of three years would defeat recovery upon the open account unless a payment was made which revived the liability. The complaint is that the court did not instruct as to the law in the case as to a continuous account, to the effect that the statute begins to run from the close of the transaction or account. When exception was taken to this instruction, the court made the following remark: “I thought of that, but it seemed to me from the evidence that the different periods in which the plaintiff boarded there were entirely disconnected. There was no evidence whatever that there was one continuous transaction. If there had been, I should have submitted that phase of the law.” We think the view of the trial court above expressed is correct. The periods covered a number of years and were so infrequent and so far removed from each other that they became independent transactions and precluded the idea that they were parts of one continuous transaction, or that they created one continuous account.
The third and last assignment of error is that the court denied appellants’ motion for new trial on the alleged ground of accident, surprise, and misconduct. It is argued that appellants were surprised by the testimony of respondent to the
In connection with the last assignment of error, the young brother of appellant Paulina Kahan was permitted to testify that money was furnished to him by respondent at the sister’s request, and it is claimed that he violated the rule of exclusion from the courtroom which had been applied to witnesses from the beginning of the trial. It is argued that he was kept in the courtroom by the respondent, and that it amounted to misconduct on the latter’s part. The rules of decision applicable to such a situation are collectively stated as follows:
“With regard to the effect of disobeying an order putting a witness under the rule upon the .competency of such witness to testify, the decisions seem to be in irreconcilable conflict. Some hold that it is discretionary with the judge to allow or forbid a disobedient witness to testify, and that the action of the court is not assignable as error. Others expressly declare that the court has no power merely for disobedience to its*252 order for separation to forbid the examination of a witness. The better rule appears to be that the witness should not be disqualified by the disobedience, but that his examination should in all cases be allowed, at least where the party calling him is guiltless of any connivance in his disobedience. If, however, it appears that the witness has disobeyed by .the consent or procurement of the party, the court may very properly exclude him.” 21 Ency. Plead. & Prac., pp. 987, 988, 989.
It will be seen that in no instance is the witness disqualified from testifying, and he should not be prevented from doing so unless his disobedience has been through the consent or procurement of the party, and in that case the court may properly exclude him; but the 'refusal to do so is a matter of discretion which will not be reviewed unless there is a manifest abuse of discretion on the part of the court. The record here does not show such abuse of discretion.
The new trial was properly denied, and the judgment is affirmed.
Fullerton, Crow, Root and Mount, JJ., concur.