
    [No. 16954.
    Department Two.
    March 8, 1922.]
    Reuben Spahr, Appellant, v. Mart Liebeck, Respondent.
    
    Pleading (43) — Answer—Inconsistent Defenses — Joinder With General Denial. Assuming, in an action on a promissory note, that the defenses of non est factum, and the statute of limitations are inconsistent, the defendant would not thereby be cut off from all defense, under a general denial, of matters which he cannot be deemed to have admitted.
    Same (174) — Issues—General Denial. In an action on a promissory note alleged to have been given in payment of interest on a prior note, which allegation was specifically denied, it was admissible, under the general denial, to prove that the money for which the note was given was for a loan which the maker obtained to pay indebtedness to another party.
    Appeal from a judgment of the superior court for King county, Davidson, J., entered August 8, 1921, upon findings in favor of the defendant as to one cause of action, in an action on promissory notes, tried to the court.
    Affirmed.
    
      Henry W. Lung and S. S. Langland, for appellant.
    
      M. H. Ingersoll, for respondent.
    
      
       Reported in 204 Pac. 1049.
    
   Hovet, J.

— Appellant sued respondent upon three promissory notes, the first being for $1,255.50, dated August 15, 1914, and due ninety-days after date, the second for $186, dated May 1, 19.15, due six months after date, and the third for $135.40, dated October 2, 1916, due six months after date.. The complaint was filed July 11, 1921. It alleged payments on the first note of $100-on June 1, 1915, and $113.25 on October 1, 1916. The answer denied the execution of the first note and denied the making of the payments alleged, and alleged affirmatively that no payments on principal or interest had been made on the first note, and that the same was barred by the statute of limitations. The reply alleged that the third note, being the one for $135.40, was made for the express purpose of paying $113.25 interest due October 1, 1916, on the first mentioned note, and to pay $22.08 interest on the note for $186. The lower court granted judgment on the second and third notes, but held that the first note was barred by the statute of limitations and denied any recovery thereon, and the appeal is from that portion of the judgment.

The first question raised by appellant is that the defenses were inconsistent, citing Seattle National Bank v. Carter, 13 Wash. 281, 43 Pac. 331, 48 L. R. A. 177, and similar cases. Assuming, without deciding, that the defenses are inconsistent, we differ with appellant as to the consequences. If the effect of the general denial can be said to be overcome by the affirmative plea of the statute of limitations, it would simply result that the plaintiff would not be put to the burden of proving the execution and delivery of the note, under the cases cited. But it does not have the effect that counsel apparently contends for, of cutting the defendant off from all defense as to matters which he will not be deemed to have admitted.

It is next contended that the court erred in admitting testimony showing that the $135.40 note was in fact given for a loan and the money so obtained was used to pay a note which respondent owed to one Frost, and it is claimed that this is a defense which should be pleaded. The payments of interest on the first note were specifically denied, and this proof was admissible under the general denial.

The statement of facts is in narrative form, and as the evidence is there summarized, we cannot say that the judgment of the trial court is not well founded; in fact, it seems, in our opinion, to preponderate in favor of the judgment.

Judgment affirmed.

Parker, C. J., Holcomb, Main, and Mackintosh, JJ., concur.  