Gilbert v. Loberg

"WiNslow, J.

The first question is whether, in an action by a landlord against his tenants for waste upon the demised premises, the tenants can counterclaim for the value of personal property which they have placed on the premises during their tenancy, and which the landlord has converted by preventing them from removing it. We think *663 this is a proper subject of counterclaim. The statute (R. S. sec. 2656) allows the defendant to plead as a counterclaim “ a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff’s ■claim, or connected with the subject of the action.” The fact of the tenancy was an essential fact in the plaintiff’s •cause of action, without which he could not maintain his action of waste. The subsisting lease was, therefore, the transaction which was the very foundation stone of his claim. It is quite plain that the counterclaim is for the violation of a right which also grew out of the relations established by the lease, and thus is a cause of action arising out of the transaction which is the foundation of plaintiff’s ■claim. Such was the ruling in Vilas v. Mason, 25 Wis. 310 .

As to the motion to strike out the defensive matter, it is settled that the motion must be denied if any part of the matter so attacked is good. Jarvis v. McBride, 18 Wis. 316 . That part of the answer which alleges that it was understood that the barn might be removed by the tenants is •clearly defensive matter in the way of confession and avoidance, and consequently is properly pleadable.

By the Court.— Order affirmed.