71 Wis. 54 | Wis. | 1888
This action was brought to recover the unpaid balance of a $400 note given by the defendants to the plaintiff as the difference on an exchange or trade of lands. The defense was that the plaintiff, as an inducement to the trade, represented, stated, and warranted to the defendants,, immediately before said sale, that part of said land — being about forty acres — was and were good hay meadow; that said lands were then covered with snow, so that they could not be examined so as to ascertain their character in that respect, and the defendant did not know of their character as hay meadow or otherwise, except what the plaintiff had so told, represented, and warranted, and that it was impossible for him then to see or know that the plaintiff’s statements, representations, and warranty were false and not true; and that, putting faith, confidence, and reliance in and upon such statements, representation, and warranty,
If this defense may be proved by parol, then there is no question but wrhat it constitutes recoupment, — “the right of the defendant, in the same action, to claim damages from the plaintiff, either because he has not complied with some cross-obligation of the contract upon which he sues, or because he has violated some duty which the law imposed upon him in the making or performance of that contract.” Schweickhart v. Stuewe, ante, p. 1. The question, therefore, presented by the numerous exceptions is narrowed down to this: May the damages accruing to the defendants from the breach of the plaintiff’s warranty of the quality of the
This court has recognized this exception in respect to deeds of conveyance in Hahn v. Doolittle, 18 Wis. 196, and in Hubbard v. Marshall, 50 Wis. 326. This is the general doctrine of the courts of this country. Wood, Pr. Ev. 5690;
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.