Schumacher v. Seeger

Cole, C. J. The defendant’s counsel admit that the matters set up in the answer as counterclaims are not properly pleadable as such; but their contention is that though these matters are pleaded as a “ defense, and by way of counterclaim,” still they are available as a setoff to the plaintiff’s cause of action, therefore the demurrer to them was properly overruled. We think this view is correct. These were proper matters of setoff. About this there can be no doubt. [396] The first claim is that the defendant, in June, 1883, loaned to Wussow (the plaintiff’s assignor) $11, which Wussow agreed to return on demand, but which has never been paid. The other claim is that Wussow became indebted to the defendant in March, 1883, for board furnished, in the sum of seven dollars. According to the complaint Wussow assigned to the plaintiff his debt against the defendant in April, 1884. So these matters could be legally set off against the plaintiff’s demand. Subd. 5, sec. 4258, and sec. 4264, R. S. They were demands existing against the plaintiff’s assignor at the time of the assignment of the debt, and could have been set off in an action brought by such assignor. Sec. 4264 provides : “ In actions in courts of record, a setoff claimed by the defendant shall be pleaded as a counterclaim, and regulated by the rules of pleading and practice applicable to counterclaims. When a counterclaim is upon a cause of action derived by assignment, a setoff of a demand against the assignor, and a setoff which in any case may be made to a counterclaim, shall be pleaded by reply as a defense.” This provision clearly authorizes a setoff to be pleaded as a counterclaim, and this court has so decided in Lawrence v. Vilas, 20 Wis. 382. In that case Dixon, O. J., when considering this question, said: “We are all of opinion that a matter pleaded as a counterclaim may be sustained as a set-off, if established by proper evidence at the trial. The facts constituting the setoff being stated in the answer, the demand of the defendant for judgment as upon a counterclaim may be rejected, or the court may order an amendment.” Page 388. It is true in this case the defendant demands judgment for the amount of his counterclaim, while no such relief could be given (sec. 4263, R. S.); but this does not vitiate the pleading, or I’ender it subject to a demurrer. The defendant had in a previous part of the answer alleged that $18 was to be deducted from the plaintiff’s claim. If this were the same demand as that subsequently set up as a [397] counterclaim, as it probably was, the pleading was double or redundant, and could have been corrected on motion to strike out. That was the proper remedy, and not the one resorted to. It follows from these views that the order of the county court must be affirmed. By the Gowrt. — Order affirmed.