#### Collins, Appellant, vs. Morrison, Respondent.

*October 22*

November *8, 1895.*

*Counterclaim: Landlord and tenant.*

In replevin by a lessor to obtain possession of bis lessee’s furniture, under a provision of the lease authorizing it to be taken and sold to satisfy unpaid rent, the lessee may counterclaim for damages for .breach of the lessor’s covenant, in the same lease, to keep the •demised premises in repair.

*325Appeal from a judgment of tbe circuit court for Douglas, county: R. D. Marshall, Circuit Judge.

*Affirmed.*

Tbe action is replevin. Plaintiff rented, a dwelling bouse to defendant.for a boarding bouse. Tbe payment of the rent and tbe fulfilment of tbe conditions of tbe lease were expressly made a charge and lien upon all the household furniture of tbe defendant, by tbe terms of tbe lease itself, with the right to take, bold, and sell to satisfy rent remaining' unpaid. Tbe lease also contained an agreement by the plaintiff to repair and keep in repair tbe roof of said building. There was rent unpaid. Tbe plaintiff made demand for the possession of tbe furniture, which was denied, and be brought this action. Tbe defendant alleged, both by way of defense and counterclaim, a breach of tbe agreement to repair, and damages by reason of tbe breach to an amount exceeding tbe rent due. There was a trial of these issues, which resulted in a verdict for tbe defendant. Erom a judgment on the verdict tbe plaintiff appeals.

*W. M.*Steele, for tbe appellant,

contended, *inter alia,*that there is no allegation or proof that tbe counterclaim relates to, or is in any way connected with, tbe goods, tbe right to tbe possession of which is in controversy in this action, hence it is not connected with tbe subject of tbe action within the meaning of tbe statute. *Seheunert v. Kaehler,*23 Wis. 523; Bliss, Code PI. § 126; *Sprout v. Orowley,*30 Wis. 187; *Pov-ensohnv. Wan'd,*45 Cal. 10; sec. 2656, S. *&*B. Ann. Stats. A counterclaim as such is not available in replevin, nor may unliquidated damages be pleaded as a counterclaim or setoff' to defeat recovery therein. Pomeroy, Remedies (2d ed.),. § 767; 7 Wait, Act. & Def. 484; *Gosli/n v. Redden,*3 Harr.. (Del.), 21; 22 Am. & Eng. Ency. of Law, 240, and cases cited in note 5; Id. 401, 402, note 1; *Kennett v. Fiekel,*41 Kan. 211; *Singer Mfg. Go. v. Smith,*40 S. C. 529; *Talbott & Sons v. Padgett,*30 id. 167; secs. 2656, 4258, S. & B. Ann. Stats.;. *Holzhcmsen v. Parhhill,*85 Wis. 446.

*326For the respondent tbe cause was submitted on the brief of *John B. Ao-nolcl.*

NewmaN, J.

The plaintiffs contentions seem to show that the allowance of .the defendant’s counterclaim is the source aud spring of the wrongs under which he suffers. Indeed, it appears by a careful examination of the whole case and the errors claimed that, if the counterclaim could properly be supported as.a proper pleading in the action, then the importance of the assigned errors, and the errors themselves, disappear. Eor it appears that, assuming the competency of the counterclaim, the trial was void of any substantial error.

This was an action of replevin, something in the nature of a distress of goods for the nonpayment of rent. The counterclaim was founded on a breach of a covenant in the same lease which was the foundation of plaintiff’s' cláim for rent. The ulterior or secondary object of the action was the collection of rent. If the action had been directly and primarily for the collection of the rent, there would be no question of the defendant’s right to counterclaim damages for the breach of her landlord’s covenant to keep the demised premises in repair.- Her claim would have been, clearly, “ a cause of action'arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.” R. S. sec. 2656, subd. 1. But, although the form of plaintiff’s action is replevin, his cause of action arises out of the contract of lease, and its real object is the recovery of rent. The defendant’s counterclaim also arises out of the lease, and its object is to show that, by the conditions of the lease itself, no rent is due. So, it would seem that, literally and strictly, the counterclaim arises out of the contract which is the foundation of the plaintiff’s claim, and so is strictly within the words of the statute. It would add nothing to *327•say, also, that it is closely connected with the subject of the ¡action, which is the collection of rent claimed to be due upon this contract.

The principle which governs such a case is stated in Pom-eroy, Code Eemedies (3d ed.), § 788, as follows: “ "Whenever “the facts are such that an election is given to the plaintiff to sue in form either for a tort or on contract, and if he sues on contract the defendant may counterclaim for damages for the breach of that contract, the same counterclaim may also be interposed when the suit is in form for the tort: the facts being exactly the same in both phases of the action, the counterclaim would clearly arise out of the *real trahsae-*Mon, which was the foundation of the plaintiff’s demand.” And it has been held that in actions of replevin to recover goods distrained for rent any damage growing directly out •of the contract of leasing may be offset against any claims -for rent due. Cobbey, Eeplevin, §§ 48, 736, 791, 794, and mases cited in notes. And it has been held by this court that in an action by the landlord against the tenant, founded upon the the lease, to recover damages from the tenant for the carrying away of sundry articles which were claimed to ■be a part of the demised premises, the tenant might counter'Claim for certain articles belonging to him which the landlord retained and refused to permit him to remove. It is said that it may fairly be said to be a cause of action which “ arises out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim. It grew directly out of the misunderstanding between the parties as to their respective rights under that contract.” *Vilas v. Mjason,*25 Wis. 310; *Gilbert v.*Loberg, 86 Wis. 661.

The counterclaim was competent. There is no substantial ■error found in the record.

*By the*Gov/rt.-— The judgment of the circuit court is affirmed.

Maeshall, J., took 'no part.