163 Iowa 406 | Iowa | 1914
The foreign judgment sued on was entered in the state of Colorado. The defendant set up a counterclaim for damages for false and fraudulent representations in the sale of real estate by plaintiff to defendant, whereby the defendant was misled to his injury and induced to enter into a contract for the purchase of such real estate. The contract thus entered into was the basis of plaintiff’s suit upon which judgment was entered in Colorado.
We have no argument for appellee.
While authorities may be found in support of the theory of the demurrer, the question has been settled otherwise in this state for many years. Code, sec. 3440, provides as follows: “Judgment obtained in an action by ordinary proceedings shall not be annulled or modified by any order in an action by equitable proceedings, except for a defense which has arisen or been discovered since the judgment was rendered; but such judgment does not prevent the recovery of any claim, though such claim might have been used by way of counterclaim in the action on which the judgment was recovered..” This section was first construed in Fairfield v. McNany, 37 Iowa, 75. In that ease an independent action was brought for damages for breach of a contract in the sale of property. Such cause of action could have been set up as a counterclaim in a previous action for the purchase price brought by McNany against Fairfield and wherein Fairfield suffered judgment by default. It was held that the cause of action was not lost to the plaintiff therein by failure to set it up in the previous action. This case was followed in Folsom v. Winch, 63 Iowa, 477; Jones v. Witousek, 114 Iowa, 14; Conly v. Scanlin (Iowa), 109 N. W. Rep. 300; Ferguson v. Epperly, 127 Iowa, 214.
In Folsom v. Winch and Conly v. Scanlin, supra, the counterclaim was interposed in each ease against a foreign judgment. In Jones v. Witousek, supra, we said:
It was settled that a set-off or counterclaim may or may not be pleaded, as the defendant shall elect; and, unless it is
The theory of the foregoing cases is that the right of election rests with the holder of an independent cause of action whether to interpose it as a counterclaim or reserve it for a later action. A counterclaim in the strict sense is not deemed a mere defense to the main action when it presents a cause upon which an original action could have been brought. Johnson v. Nash, 121 Iowa, 173.
The ease of Medart Pulley Co. v. Dubuque Turbine Co., 121 Iowa, 244, presents the question from a somewhat different angle. In that ease the plaintiff brought an action against the defendant for damages for delay in delivery of certain goods in breach of its contract. It was found in that case that the plaintiff -had waived the claim at the time of the settlement of the purchase price. The evidence of such waiver was contained in certain correspondence between the parties wherein the plaintiff at first claimed the damages in recoupment of the purchase price and afterwards in express terms waived them and paid the purchase price. There is also some
The order dismissing the counterclaim must therefore be Reversed.