16 Wash. 563 | Wash. | 1897
The opinion of the court was delivered by
The respondent, as receiver of the-Washington Savings Bank, sued appellant on two-promissory notes, aggregating $400, with accumulated interest. Appellant demurred to the complaint; but, without setting out the complaint or discussing it further, we think the allegations therein were sufficient to constitute a cause of action, and that the demurrer was properly overruled.
As an affirmative defense and counterclaim or set-
Upon the trial of the cause the respondent objected to the introduction on the part of the appellant of any evidence tending to support his counterclaim, on the ground of incompetency, and that the appellant’s alleged counterclaim could not be set up against respondent as receiver of the Washington Savings Bank. This objection was sustained by the trial court and appellant excepted. Appellant thereupon moved for a continuance on the ground of surprise, for the reason that the sixth paragraph of appellant’s affirmative answer having been stricken, the respondent’s motion is immaterial, irrelevant and redundant, and exposed appellant’s said affirmative partial defense and counterclaim to the objection now urged by respondent, and that he should be allowed a continuance to enable him to reinstate said paragraph six — which contained the allegation that the assets of the hank exceeded its liabilities. The appellant offered to make an affidavit in support of his motion for a continuance, and asked to amend his answer so as to include the allegation contended for, but the trial court overruled the motion
It is not necessary to pass upon the alleged error of the court in striking out paragraph six of the answer, for, in the absence of this allegation, we think the set-off should have been allowed. If there was an account existing between the appellant and the respondent’s bank, upon which a balance could have been struck at any time prior to the failure of the bank, if it did fail, it ought to have been considered as made, and the relative rights should not have been changed by reason of the insolvency of the bank.
If the set-off sought to be pleaded by the appellant had amounted to a counterclaim, or a claim which would have over-balanced the claim of the respondent, and would have established a demand over, then it is true that the excess of claim established by the appellant could only have been pro rated equally with the claims of other creditors against the bank, if the bank had really been insolvent and its liabilities exceeded its assets.
But that case is not presented here. On the technical question as to whether a counter claim could have been pleaded in this action, we are aware that there is some conflict of authority on the proposition generally, but it seems to us that our statute is so plain and explicit that construction cannot be invoked. If we consider it as a counterclaim, then § 195 of the Code of Procedure provide that the counterclaim mentioned in the preceding section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action :
We think the record shows that the counterclaim
The judgment will be reversed with instructions to the lower court to grant a new trial in accordance with this opinion.
Scott, C. J., and Reavis, Anders and Gordon, JJ., concur.