mittee, through its manager, Griffith, afterwards sold the notes given by appellant to respondent, the Seattle National Bank.

The answer, as we have said, denies that the plaintiff was the owner and holder of said notes, or that they had been indorsed and delivered to it for a valuable consideration, or otherwise. The court in its instructions, to which the appellant duly excepted, charged the jury that under the pleadings in this case the only question for their consideration was the question of whether the notes were paid. The defendant, after his general denial, which was upon information and belief, affirmatively alleges the transfer of the notes to the plaintiff. He alleges, in his first affirmative defense, that the notes were executed and delivered to L. H. Griffith, Edward Bluett and C. E. Remsburg, and that, subsequently to the execution and delivery of the said notes, the said committee transferred them to the plaintiff, and, in another paragraph of the same affirmative defense, alleges the payment of these notes by L. H. Griffith to the respondent. The averment of the transfer of the notes to the respondent is repeated in the second affirmative defense, where it is also alleged that the respondent, for a valuable consideration, extended the time of payment of the notes, and by reason of such extension of time the appellant claims that he is exonerated from the payment of the notes. The allegation of transfer is again repeated in the third affirmative defense, and an agreement for the settlement and the compromise for the appellant's liability upon said notes is there averred, by which it is alleged it was agreed that certain lands owned by the appellant should be conveyed in full payment of the notes, and appellant alleges the conveyance of the said lands to George R. Carter as trustee for the respondent, in full payment of the said notes. He further alleges, in the third affirmative defense, that, subsequently to the maturity of the notes, he demanded the surrender to him and possession of said notes.

Now, the question under this pleading is, was the court justified in instructing the jury, in substance, that the question of ownership of the notes and transfer to the respondent was not for their consideration!

On this subject of inconsistent defenses there have been many conflicting decisions, but we think their origin has

been in a misunderstanding of the cases cited and relied upon as sustaining the doctrine that inconsistent defenses, under the reformed practice of pleading, could be maintained; and, secondly, a loose discussion and misapprehension of what inconsistent pleadings really are. The idea that inconsistent defenses, to the extent of being false de fenses, could be tolerated under the code, has received a stimulus from the announcement of Mr. Pomeroy, in his excellent work on Remedies and Remedial Rights (section 722), that, "assuming that the defenses are utterly inconsistent, the rule is established by an overwhelming weight of judicial authority that, unless expressly prohibited by the statute, they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defenses, nor can evidence in favor of either be excluded at the trial on the ground of the inconsistency."

This announcement is attempted to be fortified by the citation of a large number of authorities. It was insisted by counsel for the respondent that an investigation of these authorities would show conclusively that they do not bear out the statement made by the author, and for the purpose of obtaining all the light possible on this question we have carefully examined the cases cited, and are forced to the conclusion that the learned author was unwarranted in making the assertion that the rule he announced was established by an overwhelming weight of judicial authority, or any weight of authority at all, under the code practice. We think it legitimately follows, however, that if these inconsistent defenses are allowed to be pleaded, evidence under them cannot be excluded at the trial on the ground of the inconsistency. Then, if they are inconsistent to the extent that, if one of the averments in the answer is true, the other must be false, and we follow the rule, as we must, that, if it is a proper subject of allegation, it is a proper subject of proof, a court of justice is placed in the absurd position of listening to proof of a defendant tending to sustain one proposition, and in the next breath proving another proposition, the facts of which are inconsistent with the one just testified to. This theory, carried to its logical result, would permit a defendant who was sued upon a promissory note to allege nonexecution, want of consideration, and payment. Under such allegations he would be permitted to swear that he never executed the note; that he

did execute the note, but that it was without consideration; and that he did execute the note, that the consideration was good, but that he had paid the same. Such a practice as this would not only be farcical, but absolutely wrong and immoral, and an encouragement of perjury; and the example given is not extravagant, if the theory announced by the author be correct.

We take it that the only object of a lawsuit is the elicitation of truth, and that the only object of pleadings is to aid in determining the truth of the controversy. But the result of allowing pleadings to stand which are inconsistent, to the extent of being untrue, would have exactly the opposite tendency, and courts would simply become machines to aid unconscionable litigants in avoiding their just responsibilities. Under the common-law practice pleadings were based upon fictions, but the code has undertaken to work a revolution in that respect, and under its provisions it is the evident intention that the pleadings shall be based upon facts which are susceptible of proof. Our code provides that the complaint shall contain a plain and concise statement of facts constituting a cause of action, and while it does not, in so many words, provide that the answer shall contain a statement of facts, it does so, in substance, so far as any affirmative allegations are concerned; for the language of the code is that it shall contain a statement of any new matter, constituting a defense or counterclaim, in ordinary and concise language. It is true that it further provides that the defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal, or equitable, or both. This is all the authority there is for claiming that, under the code, the defendant is allowed to plead inconsistent defenses. It is true that he may set forth as many defenses as he has, but it could not have been the intention of the code that he should set forth anything that was not true; for, if it was not true, it would not be a defense. There certainly could have been no intention to have discriminated against the plaintiff by giving advantage to the defendant, so far as the pleadings are concerned. It is just as consistent to insist that the plaintiff may state in his complaint inconsistent causes of action, or facts constituting his cause of action which are inconsistent with each other, as to insist that the defendant may do so

in his answer. The evident intention of the code was to place them upon an equal footing,-to compel the plaintiff by his complaint, through the medium of a statement of facts, to inform the defendant what the true cause of action or complaint was; and it was just as much the intention of the framers of the code to compel the defendant, if he had an affirmative defense, to inform the plaintiff by his answer what that affirmative defense was. There can be no reason or right in any other theory. The object of the code was to simplify lawsuits. Whether it has succeeded in doing so may be questioned, but certainly it must be consistent with itself; and it would bring about untold confusion and bad results to undertake to ingraft into the code practice practices which were admissible under, and probably hormonized with, the theory of the common-law practice. The two are incongruous, and must be kept separate and distinct, and therefore the commingling of the two evolves a system which is worse than either.

In conclusion, this much, at least, must be demanded: That, however diversified the answers may be, they must all contain the essential element of truth, and if the admission of the truth of one answer necessarily proves the falsity of another, they cannot be allowed to stand, and the plaintiff will not be compelled to sustain the truth of an allegation the truthfulness of which is asserted by the defendant. The judgment will be affirmed.1

HOYT, C. J., and SCOTT, ANDERS, and GORDON, JJ., concur.

1 Accord: Aull v. Misouri Pac. Ry. Co. (1909), 136 Mo. App. 291; Hilmer v. Western Travelers' Accident Ass'n. (1910), 86 Neb. 285; Fetzer v. Williams (1909), 80 Kan. 554; Rees v. Storms (1907), 101 Minn. 381; Gates v. Avery (1901), 112 Wis. 271; O'Donnell v. City of Butte (1911), 44 Mont. 97.

LOVELAND v. JENKINS-BOYS COMPANY.

Supreme Court of Washington, 1908.

49 Washington, 369.

FULLERTON, J.: This action was brought by the appellants against the respondent, to recover upon a written contract for the sale of jewelry. The contract in question

was in the form of an order, directing the appellants to ship to the respondent the jewelry described on a certain list to which the order was attached, on the terms printed thereon. The complaint set forth the contract, alleged its execution by the respondent and delivery to the appellants, the shipment of the goods ordered, their receipt by the respondent, and the failure and refusal of the respondent to pay for the same. For answer the respondent denied executing the written contract set out, or giving any written order for the goods described therein on the terms set out in the contract. And for a further and separate answer alleged in substance that it entered into an oral contract with the appellants to sell certain of its goods on commission, the kind and character of which were particularly described; that the appellants shipped it the goods de scribed in the complaint; that upon the receipt of the goods it paid freight and drayage charges for their transportation from their place of shipment to the respondent's place of business, amounting to $6.85, the payment being necessary in order to obtain the goods from the carrier; that it thereupon proceeded to unpack the goods, when it discovered that the goods were not of the character or kind the appellants had agreed to furnish, nor were they goods that the respondent could handle in connection with the business in which it was engaged; that it immediately repacked the goods, and notified the appellants by letter that it would not receive the same, and would return them to the appellants on the repayment of the freight and drayage charges it had advanced; that the appellants replied to the letter, claiming that they had made a sale of the goods to the respondent, and held a written order for the same. It further alleged that this was the first time it learned that the appellants claimed to have a written order for the goods and averred that if the order bore the genuine signature of the respondent, such signature was obtained thereto by trickery and fraud, and without the knowledge of the respondent. It then set forth the manner in which the signature was obtained.

The appellants moved to strike the answer, on the ground that it was inconsistent. This motion was denied, whereupon it demurred on the ground that the affirmative answer stated no defense.

It is first assigned that the court erred in refusing to