Collins v. Morrison
| Decision Date | 08 November 1895 |
| Citation | 91 Wis. 324,64 N.W. 1000 |
| Parties | COLLINS v. MORRISON. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Douglas county; R. D. Marshall, Judge.
Action by John N. Collins against Flora A. Morrison. From a judgment for defendant on her counterclaim, plaintiff appeals. Affirmed.
The action is replevin. Appellant rented a dwelling house to respondent for a boarding house. The payment of the rent and the fulfillment of the conditions of the lease were expressly made a charge and lien upon all the household furniture of the respondent, by the terms of the lease itself, with the right to take, hold, and sell to satisfy rent remaining unpaid. The lease also contained an agreement by the appellant to repair and keep in repair the roof of said building. There was rent unpaid. The appellant made demand for the possession of the furniture, which was denied, and he brought this action. The respondent alleged, both by way of defense and counterclaim, a breach of the agreement to repair, and damages by reason of the breach, to an amount exceeding the rent due. There was a trial of these issues, which resulted in a verdict for the defendant. From a judgment on the verdict, the plaintiff appeals.W. M. Steele, for appellant.
J. B. Arnold, for respondent.
NEWMAN, J. (after stating the facts).
The plaintiff's contentions seem to show that the allowance of the defendant's counterclaim is the source and spring of the wrongs under which he suffers. Indeed, it appears, by a careful examination of the whole case and the errors claimed, that, if the counterclaim could properly be supported as a proper pleading in the action, then the importance of the assigned errors, and the errors themselves, disappear. For it appears that, assuming the competency of the counterclaim, the trial was void of any substantial error.
This was an action of replevin, something in the nature of a distress of goods for the nonpayment of rent. The counterclaim was founded on a breach of a covenant in the same lease which was the foundation of plaintiff's claim for rent. The ulterior or secondary object of the action was the collection of rent. If the action had been directly and primarily for the collection of the rent, there would be no question of the defendant's right to counterclaim damages for the breach of her landlord's covenant to keep the demised premises in repair. Her claim would have been, clearly, “a cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action.” Rev. St. § 2656, subd. 1...
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...v. Mason, 25 Wis. 310; McArthur v. Green Bay & M. Canal Co., 34 Wis. 139; Gilbert v. Loberg, 86 Wis. 661, 57 N.W. 982; Collins v. Morrison, 91 Wis. 324, 64 N.W. 1000; Wood v. Pierson, 45 Mich. 313, 7 N.W. 888; v. Lewis, 3 Hun, 429; Heigle v. Wills, 50 Hun, 588, 3 N.Y.S. 497; Slone v. Slone,......
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...Loberg, 83 Wis. 189, 53 N. W. 500;Van Oss v. Synon, 85 Wis. 661, 56 N. W. 190;Gilbert v. Loberg, 86 Wis. 661, 57 N. W. 982;Collins v. Morrison (Wis.) 64 N. W. 1000. Whatever is said in Lane v. Cameron, 38 Wis. 603, inconsistent with this ruling, must be regarded as overruled. The order of t......
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...v. Mason, 25 Wis. 310;McArthur v. Green Bay & M. C. Co., 34 Wis. 139;Gilbert v. Loberg, 86 Wis. 661, 57 N. W. 982;Collins v. Morrison, 91 Wis. 324, 64 N. W. 1000;Ainsworth v. Bowen, 9 Wis. 348. Among other references upon the part of the respondent were the following: Wood v. Noack, 84 Wis.......
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