23 Wis. 523 | Wis. | 1868
The question in this case arises upon that provision of the statute which authorizes the defendant to plead as a counter-claim “ a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.” R. S. ch. 125, § 11, súbd. 1.
The complaint is in tort for the conversion of money, the proceeds of goods sold by the defendant for the plaintiff on commission; and the third separate defense, to which the demurrer is interposed, sets up, by way of counter-claim, a breach of the contract under which it is alleged the goods were delivered to be sold on commission, and claims damages on account of such breach. The alleged breach consists in a violation of the contract, not in respect to the goods sold, the proceeds of which the plaintiff seeks to recover in this form of action, but in relation to other and quite different' subjects, namely, the failure of the plaintiff to furnish employment for certain teams of the defendant, and to deliver to the defendant other goods to be sold on commission, as it is averred he had agreed to do. Assuming that a counter-claim may be pleaded to an action of tort, a question not necessary to be decided, and assuming also that no objection exists because the contract for the breach of which the defendant claims damages, is not set forth in the complaint, but that it would be admissible, if at all, under the last clause of the subdivision,' as connected with the subject of the action, the question resolves itself into
By the Oowrt. — Ordered accordingly.