Kipp v. Gates

Cassoday, C. J. 1. Tbe trial court sustained tbe demurrer to tbe portion of tbe amended answer quoted above and included in brackets on tbe ground tbat cb.. 438, Laws of 1903,. was invalid. Tbe constitutionality of tbat enactment is the-principal question discussed in tbe briefs of counsel, and numerous adjudications are cited on both sides. Tbe question is important and fundamental, and should only be determined wben properly presented and carefully considered. As we view tbe record, tbe question is not properly before us-for determination. Sucb portion of tbe amended answer so demurred to is therein alleged “as a further defense,” which obviously means a separate and additional defense. To be sucb a defense it must be complete in itself. It merely alleges tbe purchase by tbe defendant of tbe patent right and tbe giving of tbe $500 note as the purchase price thereof, and tbat sucb note did not have “written or printed thereon in red ink” tbe words required by said act, and tbat “said note-passed into tbe bands of tbe plaintiff herein after maturity without any consideration therefor,” and tbat tbe “plaintiff well knew at tbe time tbat said note” was so given and taken for a patent right, and was fraudulent and void and worthless, and tbat said facts were at tbe time of tbe taking and' giving of said note of $500 unknown to tbe defendant. But there is no allegation nor statement in said separate defense-to tbe effect tbat tbe defendant did not know of sucb facts wben be gave tbe notes mentioned in tbe complaint, nor facts-which in any way connect sucb purchase of tbe patent or sucb giving of tbe $500 note with any of tbe causes of action alleged in tbe complaint. It follows tbat tbe demurrer to so-much of tbe answer as is quoted in tbe foregoing statement and included in brackets was properly sustained for tbe reasons here stated. 2. Tbe plaintiff’s demurrer to the first counterclaim alleged in tbe answer was very obviously properly sustained. Such counterclaim is for an amount alleged to be due to the; [574] defendant from Joseph F. Scheuer, wbo sold to him the patent and toot from him the said $500 note, and thereby incurred the penalty provided by sec. 2 of the act mentioned, being “a penalty equal to the face of the note so taken.” But •such counterclaim does not purport to be a claim against this plaintiff, and hence it was not pleadable as a counterclaim under the statute. Sec. 2656, Stats. 1898; Moore v. Smead, 89 Wis. 558, 569, 62 N. W. 426; Appleton Mfg. Co. v. Fox River P. Co. 111 Wis. 465, 469, 87 N. W. 453. By the Court. — The order of the county court of Jefferson ■county is affirmed.