72 Wis. 129 | Wis. | 1888
This action is for the balance of purchase money due on the sale of certain pine lands by the plaintiff to the defendant. The defendant counterclaimed that, at the time of said sale, the plaintiff had had an estimate of the pine timber on said lands made, and had ascertained that there was on the "same 8,500,000 feet of such pine timber, and represented to the defendant that there was such an amount of pine timber on said lands. The answer further stated that the consideration of said purchase was determined from said amount of pine timber standing on said land, aud that the defendant relied upon said representation, paid part of the consideration down, and gave his notes for the balance. At the end of the first year thereafter, when the said notes became due, “the defendant ascertained that there was some shortage of pine on said lands, and so informed the plaintiff, but did not know the amount thereof, and, there being then due on said notes, with interest, $18,020, the plaintiff did deduct from the amount so due upon said notes the sum of $2,020, and the defendant then paid $15,500, and the plaintiff caused to be executed, in pursuance of said contracts, deeds of said lands,” as therein set forth. At that time “the defendant had not ascertained the true amount of said pine on said lands, and had no knowledge of the extent to which the same did fall short of 8,500,000 feet, but, supposing the shortage thereon to be about a half a million feet,' obtained the reduction aforesaid from the plaintiff for the shortage up to that time, as ascertained, but afterwards the defendant discovered, as the fact was, that there was not to exceed the amount of 4,196,000 feet of pine timber on said lands.” To' the part of the answer setting up these facts the plaintiff demurred, and the demurrer was overruled.
The only question on this appeal is whether the answer sets up facts which constitute a good counterclaim for said shortage. It seems to us that the above facts show a full
By the Court.— The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.