Green v. Batson

• Citation: 71 Wis. 54,36 N.W. 849
• Parties: GREEN v. BATSON ET AL.
• Decision Date: 28 February 1888
• Court: United States State Supreme Court of Wisconsin

71 Wis. 54

36 N.W. 849

GREEN

v.BATSON ET AL.

Supreme Court of Wisconsin.

February 28, 1888.

Appeal from circuit court, Green Lake county.

Action to recover the balance due and unpaid upon a promissory note executed by Warren A. Batson and wife, defendants below, and payable to Charles H. Green, the plaintiff. Judgment for plaintiff. Defendants appeal.Runals & Dunlap and G. E. Sutherland, for appellants.

Waring, Eichstaedt & Wiskern, for respondents.

ORTON, J.

This action was brought to recover the unpaid balance of a $400 note given by the defendants to the plaintiff as the difference on an exchange or trade of lands. The defense was that the plaintiff, as an inducement to the trade, represented, stated, and warranted to the defendants, immediately before said sale, that part of said land--being about 40 acres--was and were good hay meadow; that said lands were then covered with snow, so that they could not be examined, so as to ascertain their character in that respect, and the defendant did not know of their character as hay meadow or otherwise, except what the plaintiff had so told, represented, and warranted, and that it was impossible for him then to see or know that the plaintiff's statements, representations, and warranty were false and not true; and that, putting faith, confidence, and reliance in and upon such statements, representation, and warranty, and believing the same to be true, the defendants made the said trade or exchange, and gave the said notes, as the supposed difference between the value of said tracts of land; that in fact and truth said lands were not as they were so stated, represented, and warranted to be, and that not more than 15 acres of said land were good hay meadow, or would produce or raise good hay, but were nearly or wholly worthless, and of much less value than they would have been if they had been as so stated and represented and warranted, and were worth $250 less than they would have been had they been as so stated, represented, and warranted; and that the defendants were thereby damaged in said sum of $250, which they recouped against the plaintiff's claim; and no judgment for any excess is demanded. On the trial the defendants made many attempts, and asked many questions, to prove the said false statements, representations, and warranty set forth in their answer; but on objection-- First, that it is parol evidence in regard to the sale of land; and, second, that it appears in the deed there are several warranties, and you cannot add other warranties by parol,--the court ruled out all of such evidence, and, on motion, directed a verdict for the plaintiff for the whole amount of his claim. From the judgment entered upon said verdict this appeal is taken.

If this defense may be proved by parol, then there is no question but what it constitutes recoupment,--“the right of the defendant, in the same action, to claim damages from the plaintiff, either because he has not complied with some cross-obligation of the contract upon which he sues, or because he has violated some duty which the law imposed upon him in the making or performance of that contract.” Schweickhart v. Stuewe, ante, 606-607, (opinion filed herewith.) The question, therefore, presented by the numerous exceptions is narrowed down to this: May the damage accruing to the defendants from the breach of the plaintiff's warranty of the quality of the land conveyed to the defendants by deed in this exchange of land be proved by parol, to defeatthe plaintiff's claim. The circuit court held that they could not. The ground assumed by the learned counsel of the respondent...