Pixxey, J.
All that part of the answer which precedes, the portion denominated a counterclaim consists of defensive matter only, and states no foundation for a recovery of damages by the defendant F. D. Taft against the plaintiff,, but might suffice simply to defeat a recovery by the plaintiff on the note. It is very clear that the defensive matter thus pleaded was in tort for the fraud and deceit in the sale-of the horse to the defendant F D. Taft, and not a mere warranty; but in either case no recovery could be had. in his favor against the plaintiff, unless such matter was pleaded as a counterclaim. Resch v. Senn, 31 Wis. 138" court="Wis." date_filed="1872-01-15" href="https://app.midpage.ai/document/resch-v-senn-6601055?utm_source=webapp" opinion_id="6601055">31 Wis. 138. The circuit court erred, therefore, in submitting it to the jury to find, as it did, a verdict in favor of the defendant F. D. Taft, for damages against the plaintiff, and in submitting to the jury for any purpose the question whether the plaintiff warranted the horse, as the defensive matter was founded only *384in tort, and for fraud and deceit in the sale of the horse. The rule was settled at an early day in this state that facts which may form the basis of a counterclaim will not, when set up in the answer, be regarded as such, unless pleaded as a counterclaim, and expressly so denominated, and affirmative relief is prayed. Resch v. Senn, supra; Stowell v. Eldred, 39 Wis. 615. In the latter case it was said by Lyon, L, that “ it is so easy to commence a counterclaim by denominating it a counterclaim, and to close it with a demand for relief, that it is not unreasonable, and does no violence to the spirit of the Code, to require the pleader to do so.” The rule of these decisions was carried into sec. 2656, R. S., re quiring that each counterclaim “be pleaded as such, and be so denominated.” The matter set up in that part of the answer denominated a counterclaim is wholly insufficient to warrant any recovery in favor of the defendant F. D. Taft. It does not contain any appropriate words of reference to the matters constituting the merely defensive portion of the answer, to make such matters a part of the alleged countei’-claim; and the matters thus stated in such so-called counterclaims are not sufficient to constitute a cause of action ex contractu for a breach of the warranty, or in tort for fraud and deceit in the sale of the horse; and therefore it does not sustain the judgment for damages rendered against the plaintiff. The distinction between a cause of action in tort as for fraud and deceit stated defensively, and a cause of action ex contraotu as for a breach of Avarranty, is clear, and is pointed out in Anderson v. Case, 28 Wis. 506-509. A case ought not to be submitted to .the jury to find a cause of action ex contractu under allegations showing that the cause >of action was founded in tort only, as the party against Avhom a recovery might thus be had would, in consequence of the state of the record, be exposed to be imprisoned upon an execution against his person. We do not think that the difficulty pointed out at the trial in respect to the answer of *385the defendant was obviated or waived by the fact that the plaintiff replied to the answer and counterclaim. In any view that may properly be taken of the case, it was error to submit the case to the jury as one founded only on a breach of warranty on the sale of the horse. For these reasons, the judgment of the circuit court is erroneous, and it is not necessary to consider the other questions discussed at the argument.
By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.