72 Minn. 395 | Minn. | 1898
The complaint alleges that on August 13, 1895, the defendant was the owner in fee of certain described real estate in Swift coun
Defendant in his answer admits the agreement to sell the land to plaintiff, and denies that plaintiff ever took possession or ever paid any part of the purchase price, or ever performed any part of the contract. As a counterclaim, it is alleged that, without the knowledge or consent of defendant, plaintiff wrongfully entered upon and took possession of said real estate in the year 1893, and wrongfully cultivated and raised crops on the same during the years 1893, 1894, and 1895, and that thereafter defendant took possession of the land;
“That the value of the use of said premises for said years 1893, 1894, and 1895 was and is the sum of $960; * * * that defendant hereby elects to waive plaintiff’s tortious entry and occupation of the premises aforesaid, * * * and to recover, as upon an implied contract, the value of the use of said lands during the time the same were so occupied by the plaintiff.”
Plaintiff demurred to this counterclaim, on the ground that it does not constitute a defense or counterclaim, and defendant appeals from an order sustaining the demurrer.
1. It is well settled that the owner of real estate cannot waive the tort, and sue a trespasser on contract for the value of the premises, as if he were a tenant. Commonwealth T. Ins. & T. Co. v. Dokko, 71 Minn. 533, 74 N. W. 891, and cases cited.
2. Plaintiff’s cause of action is for a breach of a contract. Defendant’s cause of action is purely in tort, and cannot, under G. S. 1894, § 5237, be pleaded as a counterclaim in the action, unless it arose “out of the contract or transaction set forth in the complaint as the foundation of plaintiff’s claim,” or “is connected with the subject of the action.” Clearly, it did not arise out of such contract or transaction. Neither is it connected with the subject of
Order affirmed.