#### Lee, Respondent, vs. Young, Appellant.

*September 14*

October *3, 1911.*

*Pleading: Answer: General denial: Right of plaintiff to sue: Waiver of objection.*

In an action by an individual upon a contract alleged to have been made with him, defendant may under a general denial show that the contract was made with a corporation and not with plaintiff individually. Such defense being one which goes to the cause of action itself and if true shows that plaintiff is an entire stranger thereto, the rule is not applicable which requires the objection that plaintiff is not the real party in interest to be taken specifically by answer or demurrer. *Robbins v. Deverill,*20 Wis. 142, distinguished.

Appeal from a judgment of the circuit court for Douglas county: Eeank A. Ross, Circuit Judge.

*Reversed.*

The complaint alleged that on or about June 1, 1909, the plaintiff was engaged in business in tbe city of Superior as a stock broker, trading under tbe name of M. W. Lee & Company, and at tbe request of tbe defendant purchased for bim 100 shares of Lake Superior & Sonora Copper Company stock and 100 shares of Cordova Copper Company stock, for which defendant agreed to pay plaintiff $195.25; that of this amount $128.75 has been paid, leaving a balance due of $66.50, with interest. Defendant answered by a general denial of tbe allegations of tbe complaint. Trial was bad in tbe municipal court, where plaintiff recovered judgment, from which judgment defendant appealed to tbe circuit court. At tbe close of tbe testimony tbe court directed a verdict for tbe plaintiff for damages and costs, and from this judgment defendant appeals.

Tbe cause was submitted for tbe appellant on tbe brief of *Hanitch & Hartley,*and for tbe respondent on a brief signed by *O. H. Winsor,*attorney, and *W. E. Haily,*of counsel.

*54BabNes, J.

Tbe defense attempted to be interposed was that tbe contract sued on was made witb “M. W. Lee & Company,” incorporated, and not witb *M. W. Lee*individually. Tbe answer of tbe defendant was a general denial, and tbe respondent -insists that tbe judgment is right (1) because tbe objection that tbe plaintiff was not tbe real party in interest must be raised by answer or demurrer, and if not so raised it is waived, and (2) because tbe evidence offered by tbe defendant would not warrant tbe jury in returning a verdict in bis favor.

Tbe plaintiff alleged that tbe defendant entered into a contract witb bim, on wbicb there was a balance due. This tbe defendant denied. We see no reason why such denial did not require tbe plaintiff to prove tbe allegation of bis complaint. This be did not do if tbe proof showed that tbe contract was made between defendant and a third party, and tbe corporation was a third party no matter bow much of its stock tbe plaintiff owned. *Button v. Hoffman,*61 Wis. 20, 20 N. W. 667. Tbe plaintiff was not a proper party to tbe action if tbe contract was in fact made witb tbe corporation. It was held in *Robbins v. Deverill,*20 Wis. 142, that tbe objection that an action was not brought in the name of tbe real party in interest must be taken advantage of by demurrer or specifically by answer, and we are informed by the appellant that tbe court relied on this decision in directing a 'verdict. In tbe case cited tbe plaintiff was a proper party to tbe action and in conjunction witb others was tbe owner of a cause of action. Tbe defense relied on in the case before us is one wbicb goes to tbe cause of action itself as regards tbe plaintiff, and one wbicb if true shows that tbe plaintiff is an entire stranger to tbe cause of action wbicb be attempts to enforce. Such a defense is available under a general denial. Tbe case of *McKenney v. Minahan,*119 Wis. 651, 97 N. W. 489, is quite analogous, tbe only difference being that it was there claimed that tbe objection that plaintiff *had not the legal ca**55*pacity to sue*was waived -unless specifically pleaded. The court beld that as to the facts of that case such rule had no application, and that where the objection went to the cause of -action itself and it appeared that under no circumstances and in no capacity could the plaintiff maintain the action, a general denial was sufficient to raise the issue.

Directly in point is the case of *Hilliard v. Wis. L. Ins. Co.*137 Wis. 208, 212, 117 N. W. 999. There the question was whether the objection that the plaintiff who sued on a life insurance policy was not the real party in interest was waived if not specifically raised by answer or demurrer. Speaking of a pretended owner who sues to 'enforce a cause of action the court says:

“In such a situation the infirmity of plaintiff’s position /goes to the very foundation of the claim of right. If it is put in issue by a denial the burden is upon him to establish it. The fact showing such infirmity is not matter in abatement nor new matter required, in order to be available, to be pleaded specially. The general rule under the Code is that •any matter of fact alleged in the complaint which the plaintiff must establish to make out his cause of action may be disproved under a general denial.”

It follows that the defendant might, under the pleadings, ■show that he contracted with the corporation.

On the second question argued we are satisfied that there was sufficient evidence to warrant a jury in finding that the •contract was made with the corporation. We assume from the uncontradieted statement made in appellant’s brief that the trial court did not hold that the evidence relied on by defendant was insufficient to present a jury question. In any ■event we fail to see how a recital of the evidence would be helpful to the parties or useful to the profession.

*By the Gourt.*— Judgment reversed, and cause remanded ■for a new trial.