#### Boutin, Appellant, vs. Andreas and another, Respondents.

*May 5*

June *1, 1915.*

*Dismissal and nonsuit: Right to dismiss or discontinue: Discretion of court: Counterclaim: Judgment.*

1. The trial court may refuse to permit plaintiff to dismiss or discontinue the action, even though such dismissal, or discontinuance would not interfere with defendants’ right to the trial of the issue on a counterclaim.

2. There is no practical difference between a voluntary dismissal and a discontinuance so far as plaintiff’s right to bring another action is concerned.

3. Where there is a real controversy and issue has been duly joined, plaintiff may be compelled to proceed or take a dismissal which will preclude another action for the same cause.

4. Defendants having alleged that it was agreed that performance of a second contract upon which they based their counterclaim should extinguish the plaintiff’s claim for damages under the contract sued on, failure to produce evidence in support of such allegation did not preclude defendants from proving their counterclaim and not only recovering the amount due thereon but putting at rest plaintiff’s adverse claim.

Appeal from a judgment of tbe circuit court for Bayfield county: G-. N. Risjobd, Circuit Judge.

*Affirmed.*

Action to recover for breach of contract.

Plaintiff claimed defendants breached their warranty respecting a heating plant installed in his residence.

They alleged acceptance of the work and counterclaimed for $163 on a completed contract for furnishing and installing new boilers and connections in place of existing ones, same to be accepted in full satisfaction for any claim he had for damages in respect to the subject mentioned in the complaint. He replied, admitting the contract to install new boilers and material, but denied that performance of such contract was to extinguish his claim for damages. He admitted performance of the secondary contract, but denied that the agreed price therefor amounted to the sum claimed by defendants.

*153After tbe ease was duly called for trial and before tbe jury was impaneled plaintiff asked leave to dismiss bis complaint, at tbe same time consenting to permit defendants to enter a judgment of nonsuit. Plaintiff did not offer evidence. Defendants offered evidence to support tbeir claims. Tbe court directed a verdict in tbeir favor for tbe amount they claimed, and judgment was rendered accordingly.

Tbe cause was submitted for tbe appellant on tbe brief of *Hanitch & Hartley,*and for tbe respondents on that of *B. G. Alvord.*

Marshall, J.

Did tbe court err in refusing to permit plaintiff to discontinue ?

Appellant’s counsel support tbe affirmative of tbe question stated upon tbe theory that a plaintiff, before submission of bis case, has an absolute right to dismiss without prejudice to trial of tbe issue on tbe counterclaim in case of there being one. Tbe law is otherwise as declared in *State ex rel. Milwaukee v.*Ludwig, 106 Wis. 226, 82 N. W. 158; *Anderson v. Horlick’s M. M. Co.*137 Wis. 569, 119 N. W. 342. Earlier cases, such as *McLeod v.*Bertschy, 33 Wis. 176, to tbe effect that a plaintiff, as to bis own claim has an undoubted right to discontinue, are modified by tbe later ones bolding that tbe court may, in its discretion, refuse a request therefor, as in this case.

It must be kept in mind that while tbe term “dismissal” was used in this case, instead of discontinuance, it was a voluntary dismissal which was sought, a mere discontinuance, leaving tbe plaintiff free to again resort to a judicial remedy for tbe same redress as before. There is no practical difference between a voluntary dismissal and discontinuance. So, though in *State ex rel. Milwaukee v. Ludwig*and *Anderson v. Horlick’s M. M. Co.*tbe proceeding dealt with was called a discontinuance, it was identical with a voluntary dismissal as regards tbe after status of tbe parties.

*154TRe trial court Rad ample reason in tRis case for refusing to permit appellant, after Raving RrougRt respondents into court to withdraw Ris claim and preserve competency to vex tRem again and take up tRe time of tRe court Ry commencing another action. If parties Rave a real controversy which must Re settled by judicial interference and an issue is once duly made up in respect to tRe matter, tRe plaintiff sRould not be allowed to trifle witR judicial administrative facilities by discontinuing without cause. TRe court may well exercise its authority to compel Rim to proceed or take a dismissal which will terminate the matter so far as cognizable by courts.

It is said the claim that the secondary contract was in settlement of appellant’s claim upon the first contract was not a proper subject for litigation in this action because not pleaded. We perceive no merit in that. Respondents distinctly alleged it was agreed that performance of the secondary contract sRould extinguish the claim for damages. TRe failure to produce evidence of such claim by no means precluded them from proving the whole subject of the counterclaim and, not only recovering the amount due thereon, but putting at rest the adverse claim.

Lastly, it is suggested that the court erred in directing a verdict in respondents’ favor because the evidence did not establish their claim as to the amount due. TRe contrary seems plain. One of the defendants testified that the amount of material furnished under the contract was $468.44; that the time to be charged for was 391 hours; that plaintiff was to pay all freight and cartage bills, and that the balance due was $163.94. In the absence of evidence to the contrary there was nothing to do but find for the defendants as was done.

*By the Court.*— TRe judgment is affirmed.