
    [No. 7764.
    Decided March 23, 1909.]
    Benjamin Gerber, Appellant, v. Maurice Gerber, Respondent.
      
    
    Pleading — Amendment — After Trial — Discretion. It is discretionary to refuse to allow an amendment of the complaint, after the defense of an account stated had been tried out, where it would have necessitated a retrial on new issues, with a shifting of the burden of proof.
    Pleading — Inconsistent Defenses — Departure. In an action for an accounting, in which the defense was an account stated, a reply denying the statement of the account and a defense that the account stated was procured by fraud, are inconsistent defenses.
    Appeal from a judgment of the superior court for King county, Yaltey, J., entered December 20, 1907, upon findings in favor of the defendant, in an action for an accounting etc.
    Affirmed.
    
      Philip Tworoger (Joseph M. Glasgow, of counsel), for appellant.
    
      Leopold M. Stern, for respondent.
    
      
      Reported in 100 Pac. 735.
    
   Dunbar, J.

Plaintiff sued defendant below for an accounting and cancellation of a mortgage. The material part of the defendant’s defense was that the defendant and plaintiff had had an accounting, and that there was .an account stated and a full agreement arrived at in relation to the controversy between them; that the account stated was in favor of the defendant for the sum of $1,094.18; and that, subsequently to said agreement, he had advanced to the plaintiff under said agreement the further sum of $181.50, alleging that there was then due and owing to the defendant the sum of $1,275.68, with interest. The plaintiff’s reply was a denial of the affirmative allegation of the answer. The court found upon the trial of the cause that there had been an account stated, and entered a judgment for defendant, substantially as prayed for in the answer. From this judgment this appeal is taken.

It is contended by appellant that the court erred in refusing to allow him to amend his complaint by alleging, in substance, that, if there was an account stated, it was procured by fraud. In addition to the fact that there had been no offer to amend until after the question of whether an account had been stated had been tried out and decided against the appellant, so that the amendment would have necessitated a retrial of the case on new issues, with a shifting of the burden of proof, and that under such circumstances we would not interfere with the discretion of the court, we think the defenses were inconsistent under the rule announced in Seattle Nat. Bank v. Carter, 13 Wash. 281, 43 Pac. 331, 48 L. R. A. 177. The testimony offered in relation to the fraudulency of the transaction was not admissible under the pleadings.

So far as the merits of the controversy are concerned, an examination of the record convinces us that the overwhelming weight of the testimony sustains the judgment of the court. The judgment will therefore be affirmed.

Fullerton, Chadwick, Mount, Crow, and Gose, JJ., concur.  