Elliott v. Espenhain, 54 Wis. 231

Elliott v. Espenhain

54 Wis. 231 | Wis. | 1882

Lyon, J.

The averments in the amended answer of the defendant Bartels in respect to the copartnership of the defendants are somewhat peculiar, but they may fairly be construed as an admission by the defendant Bartels, for the purposes of *233this action, that when the goods mentioned in the complaint and counterclaim were sold and delivered, or agreed to be delivered, the defendants were copartners. The pleading is somewhat analogous to one of the forms of confession in criminal cases sanctioned by the common law. Says Jacobs (Law Diet., tit. “Confession”): “There is a confession indirectly implied as well as directly expressed- in criminal cases; as if the defendant, in a case not capital, doth not directly own himself guilty of the crime, but, by submitting to a fine, owns his guilt; whereupon the judge may accept his submission to the king’s mercy.” In other words, on such implied confession the judge may proceed to judgment. The advantage of such a plea seems to have been (for in practice it has become obsolete), that it did not preclude the defendant from controverting hi's guilt in a civil action brought against him for the same matter, while a plea of guilty would estop him to assert his innocence. Probably this form of answer was adopted in this case for a similar purpose; that is, to save beyond question the right of the defendant Bartels to deny the.copartnership in other actions which might be brought against the alleged firm. But, however that may be, we are clearly of the opinion that the answer distinctly waives any issue of copartnership, and for the purposes of the case admits that the defendants are copartners as alleged in the complaint; hence, so far as they affect this case, the averments in the amended answer concerning such copartnership might as well have been omitted from the pleading.

It is assumed in the brief of the learned counsel for the plaintiff, that the counterclaim shows on its face that it is for a demand due the defendant Espenhain alone, and hence that it cannot be interposed in this action against the firm. The conclusion from the premise is doubtléss correct, but we think the pleading does not support the premise. True, it is alleged that the contract to deliver goods, the breach of which is the *234foundation of the counterclaim, was made by and with Espenhain; but the counterclaim is for damages resulting from such breach which it is alleged accrued to both defendants in case they are adjudged to be copartners. It being now adjudged on the pleadings that, for the purposes of the case, they are copartners, the counterclaim is for damages accruing to both, and hence the proner subject matter of a counterclaim in an action on contract against' the firm. This being so, there seems to be no doubt of the right of either partner, answering separately, to interpose such counterclaim.

We conclude that the demurrer to the counterclaim was properly overruled.

By the Court.— Order affirmed.