Washburne v. Dorsch

• Decision Date: 22 March 1887
• Citation: 68 Wis. 436,32 N.W. 551
• Parties: WASHBURNE v. DORSCH and Another.
• Court: Wisconsin Supreme Court

68 Wis. 436

32 N.W. 551

WASHBURNE

v.DORSCH and Another.^*

Supreme Court of Wisconsin.

March 22, 1887.

Appeal from circuit court, Richland county.

The complaint is upon a promissory note executed by the defendants, Dorsch and Noble, jointly, February 12, 1883, payable to the plaintiff, for $528, and interest. The answer of the defendants alleged, in effect, that the note was signed by Noble merely as surety for Dorsch, to the knowledge of the plaintiff; that the note was given by Dorsch at the time named in part payment of the purchase price of a stock of dry goods, groceries, furniture, and fixtures, invoiced at $6,380.80, then owned by the plaintiff and in his store building in the village of Excelsior, and in which he had for years carried on a successful and lucrative business as a dry-goods and grocery merchant; that, upon said purchase then made, the said Dorsch agreed to pay to the said plaintiff for said dry goods, groceries, furniture, and fixtures, together with the good-will of said business, and upon the agreement of the plaintiff that he would refrain from doing any such business in said village or vicinity for the period of five years, (for which period Dorsch then leased said store of the plaintiff at $366 per year,) the said sum of $6,380.80, and thereupon said Dorsch entered into and took possession of said property and continued said business; that, in violation of said agreement, the plaintiff re-established the same kind of business, and continued to sell in said village the same class of dry goods and groceries at retail, to the damage of Dorsch in the sum of $2,000; and, for a second counter-claim, that the plaintiff was indebted to Dorsch for or on account of railroad ties in the sum of $100; that Dorsch had fully performed said agreement on his part, and that the plaintiff had failed to perform; that the answer demanded the dismissal of the complaint, with costs, and that the amount of the plaintiff's claim be set off against the claim of Dorsch, and for judgment. To each of the counter-claims the plaintiff replied by general denial. At the close of the trial, the jury returned answers to four several questions submitted to them to the effect (1) that the value of the 100 railroad ties, for which demand was made in the second counter-claim, was $27.50; (2) that such railroad ties were not paid or settled for at the time of settlement between the plaintiff and Dorsch in April, 1884; (3) that the plaintiff agreed with Dorsch, when he sold him his stock of goods in February, 1883, that, in consideration of Dorsch buying the stock, he would not enter into the dry-goods and grocery trade in Excelsior for a period of five years; (4) that the damages which directly resulted to Dorsch from the plaintiff again going into the dry-goods and grocery trade in Excelsior was $550. The jury at the same time returned a general verdict as follows: “We, the jury, impaneled and sworn to try the above-entitled action, find for the defendants ($16.57) sixteen dollars and 57-100;” which last words and figures, to-wit, “($16.57) sixteen dollars and 57-100,” the court directed to be stricken from the verdict, and the same were stricken therefrom. The plaintiff moved the court upon the minutes to set aside said verdict and findings, and for a new trial, which was denied. Thereupon judgment was rendered upon said verdict and findings, dismissing the complaint upon the merits and for costs. From the judgment so rendered the plaintiff brings this appeal.Wilson & Provis, for appellant.

Brooks & Dutcher, for respondents.

CASSODAY, J.

The plaintiff objected to any evidence in support of the first counter-claim, on the ground that the matter therein alleged was not properly pleadable as a counter-claim. The reason for the objection is that such counter-claim did not exist in favor of both defendants and against the plaintiff, so that a several judgment might have been had thereon in the action, as required by section 2656, Rev. St.; but it was for 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, at least, it was connected with the subject of the action. In this respect it satisfied subdivision 1 of that section. Assuming that it did not strictly satisfy all the requirements of a counter-claim, still it was properly pleadable by both defendants as “a statement of new matter constituting a defense.” Subdivision 2, § 2655, Rev. St. As such mere defense no reply was necessary, as it was to be deemed controverted without. Section 2667, Rev. St. Although it was pleaded as a counter-claim, and replied to as such, yet the amendment of the verdict by the court striking out the excess found in favor of the defendants, and giving judgment dismissing the complaint, and for costs only, resulted in limiting the effect of the answer to a mere defense. The amendment was favorable to the plaintiff, and affected none of his substantial rights, and was properly deemed immaterial and amendable by the court. Sections 2669, 2670, 2829, Rev. St.

The good-will of an established and successful business is undoubtedly of much value to the possessor of such business, and may be sold with it. Wallingford v. Burr, 17 Neb. 137, 22 N. W. Rep. 350, and cases there cited. But while such sale will entitle the purchaser to a certain limited protection, it will not of itself alone be sufficient to preclude the seller from engaging in a separate and independent business of the same kind in the same village or city. Pearson v. Pearson, 27 Ch. Div. 145, overruling Labouchere v. Dawson, L. R. 13 Eq. 322, in so far as it held that such seller so engaged must not...