Lindsay v. Fricke
Wisconsin Supreme Court
Appeal from an order of the circuit court for Manitowoc-county: Michael Ejewan, Circuit Judge. This is an action of replevin to recover possession of a traction engine delivered to defendant.
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Appeal from an order of the circuit court for Manitowoc-county: Michael Ejewan, Circuit Judge. This is an action of replevin to recover possession of a traction engine delivered to defendant. The complaint alleges-that on the 22d day of August, 1905, defendant entered into the following contract with plaintiffs: “Dated at Newton, August 22, 1905. “Lindsay Brothers, Milwaukee, Wis.: Please furnish or ship for the undersigned, on or about August 25th, 1905, to->0. H. Friclee, at Newton, Wis., tbe following machinery: One 18-horse Enssell traction engine, with 18-inch road wheels with diagonal…
1Opinion of the CourtKerwin, J.
The contention on the part of counsel for appellants to reverse the order overruling the demurrer to the defendant’s counterclaim is that it appears from the counterclaim (1) that defendant failed to settle for the machine *114as provided in the contract, and therefore all warranties became void; (2) that defendant failed to return the engine, but accepted it, and therefore has no claim for damages. The counterclaim, on demurrer, must stand or fall upon the allegations thereof. It is alleged therein that the defendant never, ref used to make settlement for the engine, and this allegation is a…
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