De Groot v. Veldboom

RoseNberry, J. Plaintiff contends (1) that the matters set out in the counterclaim are not pleadable as such under sec. 2656, Stats. We shall not set out that section here. Suffice it to say that.it provides that a counterclaim may be interposed where it sets out a cause of action arising out of a contract or transaction set forth in the complaint as the foundation of the plaintiffs claim or connected with the subject of the action. No contract or transaction is set forth in the complaint, but we think the cause of action set forth in the counterclaim is clearly connected with the subject of the action, as that is defined in McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445. It is there laid down: “In possessory and proprietary actions, whether involving real Or personal property, the subject of action is composed of the plaintiffs primary right together with the specific property itself.” No useful purpose would be served by a reconsideration of this matter; it was there fully and elaborately considered and we adhere to the principles and doctrines there laid down. The second contention of the plaintiff is that there is not a sufficient quantum of evidence to sustain a reformation of the deed by the terms of which the- defendant assumed and agreed to pay the mortgage. The defendant is not here seeking to reform the deed or to rescind his contract, but alleges that the insertion of the clause by the terms of which he was to pay the mortgage was as to him a fraud; that he has suffered damage therefrom, and he seeks recovery of the damages. The jury has found upon this issue in favor of the defendant, under an instruction of the trial court that in [112] order to so find it must appear to tbe jury tbat tbe fact is established by a clear and satisfactory preponderance of tbe evidence. Upon tbis theory of tbe case, however, tbe verdict upon its face is fatally defective. There is no finding by tbe jury as to whether or not tbe defendant was negligent in accepting tbe written instrument in question, nor is there any express finding upon tbat matter by tbe court. How-evef, in accordance with tbe provisions of sec. 2858m, Stats., tbis fact not having been brought to tbe attention of tbe trial court by a request, tbe fact must be deemed to have been found by tbe court against tbe plaintiff, in conformity with tbe judgment as provided therein. It is also claimed tbat tbe judgment in tbis case is not in tbe proper form; tbat there are two judgments: one a judgment in favor of tbe plaintiff for tbe return of tbe property, tbe other a judgment in favor of tbe defendant for tbe amount of bis damages. Relief is often granted to both of tbe parties to an action. Tbe fact tbat each party recovers does not make more than one final judgment. Tbe defendant seems to have tried tbe issue raised by tbe counterclaim on tbe theory tbat be was entitled to recover on account of fraud committed by tbe plaintiff, and plaintiff to defend on tbat issue on tbe ground tbat there was no evidence sufficient to entitle tbe defendant to a reformation, tbat there was no prayer for reformation, and tbat therefore tbe defendant was concluded by tbe terms of tbe deed. Here, however, no reformation is sought. Tbe defendant is and will be bound to pay the amount of tbe mortgage. He recovers for bis damages in this action for tbe fraud perpetrated upon him by tbe plaintiff, as found by tbe jury, and no question of tbe reformation of an instrument is involved. Tbe instructions of tbe court to tbe jury laid down tbe true rule as established by tbe decisions of tbis court; tbat is, tbat recovery may be bad in cases of fraud where the fraud is es113 tablisbed by a clear and satisfactory preponderance of tbe evidence. Bowe v. Gage, 127 Wis. 245, 106 N. W. 1074; Brennan v. Eealy, 157 Wis. 37, 145 N. W. 641. By the Court. — Judgment affirmed.