Opinion
February 6, 1952 —
March 4, 1952.
APPEAL from an order of the circuit court for La Crosse county: HARRY S. Fox, Circuit Judge, Presiding. Affirmed.
For the appellant there were briefs by Johns Pappas of La Crosse, and oral argument by Robert D. Johns.
For the respondent there was a brief by Bosshard Arneson of La Crosse, and oral argument by Philip G. Arneson.
The complaint alleges four causes of action, each for recovery upon a promissory note. The answer pleads a negative pregnant to each of the causes of action and also an affirmative defense. By an amended answer defendant pleads a setoff based upon plaintiff's failure to pay the purchase price of certain shares of stock sold him by defendant. In support of his motion for summary judgment plaintiff filed an affidavit in which, after realleging the matters contained in the complaint, he sets up a number of facts concerning the transactions culminating in the contracts described in the pleadings. Defendant's counteraffidavit consists principally of denials of the matters contained in plaintiff's affidavit. It was stipulated that an adverse examination previously taken of the defendant might be considered in the disposition of the motion.
From an order entered October 2, 1951, denying motion for summary judgment, plaintiff appeals.
To recite in detail the facts alleged by the parties would extend this opinion to unwarranted and useless length. It is enough to say that they present issues of fact which may not be determined on a motion for summary judgment. Prime Mfg. Co. v. A. F. Gallun Sons Corp. 229 Wis. 348, 281 N.W. 697. Certainly, defendant's allegations in his amended answer that plaintiff is indebted to him on account of plaintiff's failure to pay the purchase price of stock sold him, if there were no other defense sufficiently pleaded, and which liability plaintiff seeks to avoid by allegations in his affidavit respecting a contemporaneous agreement, may not be summarily disposed of.
Plaintiff contends that the setoff is not properly or sufficiently pleaded. If he is correct the objection could have been made by demurrer. Brauchle v. Nothhelfer, 107 Wis. 457, 83 N.W. 653. The sufficiency of a pleading is not determined upon a motion for summary judgment where it appears that issues of fact are presented. Fredrickson v. Kabat, 260 Wis. 201, 50 N.W.2d 381.
By the Court. — Order affirmed.