South Milwaukee Boulevard Heights Co. v. Harte

Winslow, J. 1. The appellant’s first contention is that, the second counterclaim is inconsistent with the defense and with the first counterclaim, and that the demurrers to the595 defense and the first counterclaim should have been sustained, and no evidence received under them, on account of such inconsistency. This contention must fail. It is well settled that the defendant may plead as many defenses and counterclaims as he has, although they may be based on inconsistent legal theories. R. S. sec. 2657; Bruce v. Burr, 67 N. Y. 237; Pomeroy, Code Rem. (3d ed.), § 722, and authorities cited in note; Maxwell, Code PL 396, 397. This rule does not invade the general principle that the truth should be pleaded, nor the principle that an admission in an answer will not be affected by a repugnant denial in another part of the same answer. Hartwell v. Page, 14 Wis. 49. While authorities may be found stating, in general terms, that inconsistent defenses cannot be set up in the same answer, examination will show that these are generally cases where repugnant allegations of fact are contained in the different defenses, and where, consequently, the proof of one defense would necessarily disprove the other. There are in the present'case no repugnant nor contradictory statements of fact. Indeed, the facts alleged in the defense and in the counterclaims are perfectly consistent and harmonious. The only object of the second counterclaim is to obtain damages for breach of the contract, should it be held that it was binding, and that there was no fraud. This, we hold, may properly be joined with a defense or counterclaim to avoid the contract on the ground of fraud. 2. The following instructions were requested by the plaintiff, and refused: “ The defendant cannot, under the evidence, recover upon his first counterclaim, nor obtain a rescission on the grounds of false representations, if, by the exercise of diligence at the time and place said representations were made, he might have discovered that they were incorrect, unless prevented from the discovery of the truth by the artifice of the plaintiff. The defendant cannot recover if he failed to exercise his right to rescind within a reasonable [596] time after the discovery of the alleged defect.” The court, however, in the general charge, instructed the jury as follows upon these subjects: “I will instruct you, gentlemen, generally, that a party must always exercise due diligence to protect himself from fraud, and by due diligence is meant such diligence as ordinarily prudent men would use; and he must also continue to use due diligence to protect his rights all through, and, if due diligence requires that he should make an effort to find out whether he is defrauded, he must use that diligence; and whether he did is a question of fact for you. It does not necessarily follow, because Oapt. Pabst did not erect the buildings, or start to, in the spring of 1893, that the defendant was bound to know that he had not bought the lots, or bound himself to erect them. Rut you may take that into account, as a circumstance tending to open the eyes of the defendant and cause him to make inquiry as to whether Oapt. Pabst had made the purchase. And a man must exercise ordinary diligence to protect himself from fraud in making contracts, and by ordinary diligence is meant such care and diligence as the great majority of mankind, or ordinarily prudent men, would exercise under like circumstances. And whether such ordinary care and diligence were in fact exercised is a question of fact for the jury, under all circumstances disclosed by the evidence in the case. So a party desiring to rescind a contract which he has been induced to enter into by fraud must, within a reasonable time after discovering the fraud, so signify to the other party, and this he may. do by an ordinary notice. And what is a reasonable time is a question of fact for the jury, to be determined by the evidence in the case, and all the attending circumstances disclosed by the evidence.” Conceding that the instructions asked were correct in law, we think the substance of them was fairly covered in the general charge. 3. A number of exceptions were taken to the rulings on [597] evidence. It does not seem necessary to state the points made. "We have examined the rulings, and find no error. By the Court.— Judgment affirmed.