Woodford v. Marshall

• Decision Date: 18 September 1888
• Parties: WOODFORD v. MARSHALL.
• Court: Wisconsin Supreme Court

72 Wis. 129

39 N.W. 376

WOODFORD

v.MARSHALL.

Supreme Court of Wisconsin.

September 18, 1888.

Appeal from circuit court, Brown county; SAMUEL D. HASTINGS, Judge.

Action by Truman Woodford against L. M. Marshall for balance of purchase money. Plaintiff appeals from an order overruling his demurrer to defendant's counter-claim.Henry L. Buxton, for appellant.

O. A. Wells and Turner & Timlin, for respondent.

ORTON, J.

This action is for the balance of purchase money due on the sale of certain pine lands by the plaintiff to the defendant. The defendant counter-claimed that, at the time of said sale, the plaintiff had had an estimate of the pine timber on said lands made, and had ascertained that there was on the same 8,500,000 feet of such pine timber, and represented to the defendant that there was such an amount of pine timber on said lands. The answer further stated that the consideration of said purchase was determined from said amount of pine timber standing on said land, and that the defendant relied upon said representation, paid part of the consideration down, and gave his notes for the balance. At the end of the first year thereafter, when the said notes became due, “the defendant ascertained that there was some shortage of pine on said lands, and so informed the plaintiff, but did not know the amount thereof, and, there being then due on said notes, with interest, $18,020, the plaintiff did deduct from the amount so due upon said notes the sum of $2,020, and the defendant then paid $15,500, and the plaintiff caused to be executed, in pursuance of said contracts, deeds of said lands,” as therein set forth. At that time “the defendant had not ascertained the true amount of said pine on said lands, and had no knowledge of the extent to which the same did fall short of 8,500,000 feet, but, supposing the shortage thereon to be about half a million feet, obtained the reduction aforesaid from the plaintiff for the shortage up to that time, as ascertained, but afterwards the defendant discovered, as the fact was, that there was not to exceed the amount of 4,196,000 feet of pine timber on said lands.” To the part of the answer setting up these facts the plaintiff demurred, and the demurrer was overruled.

The only question on this appeal is whether the answer sets up facts which constitute a good counter-claim for said shortage. It seems to us that the above facts show a full settlement and accord and satisfaction for the shortage claimed by the defendant on the amount of the pine on said lands. The statement is, in effect, that after the lapse of a year after the sale, the defendant having had ample time and opportunity in which to ascertain or estimate the deficiency of said pine, and, after the money was due and the...