Sattler v. Niederkorn , 190 Wis. 464 ( 1926 )

Vinje, C. J.

The objection that the counterclaim does not state a cause of action is based upori the fact that defendant voluntarily settled with the Greens without a judicial determination of his liability and that the agreement entered into between the parties does not justify the payment by the defendant except as a volunteer. We cannot so construe the agreement. If it was so understood by the plaintiff at the time it was entered into, namely, that its execution and settlement under it by the defendant would relieve plaintiff from liability, then it was but a ruse employed to saddle all the liability to the Greens upon the defendant. It should not be so construed unless there is no other reasonable construction possible. We think both parties realized that a settlement with the Greens for $8,000 was desirable and that in event plaintiff was held jointly liable the amount due from him was to be $4,000. So construed the agreement means something and has a rational basis for its existence. Construed as plaintiff now claims, it would be entirely meaningless except as a release from all liability on the part of the plaintiff. Cases holding that a voluntary! payment by one jointly guilt}7 of negligence bars contribu-1 tion are not applicable to this case because of the agreement entered into.

If the counterclaim is pleadable as such it is because it satisfied the conditions of sub. (1) (a) of sec. 263.14, Stats. It confessedly does not come under sub. (1) (b) or (c). Sub. (1) (a) provides; “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.” The transaction set forth in plaintiff’s complaint is the collision that occurred between plaintiff’s automobile and defendant’s automobile June 21, 1924, and the alleged conduct of the driver of each automobile. The liability of the one to the other for contribution, if any, grows out of the same collision and conduct plus the fact of payment by one of more than his share. The cause of action for contribution is not ripe till payment has been made. Bakula v. Schwab, 167 Wis. 546, 557, 168 N. W. 378. In this case payment was not made till about eight months after the collision. But it has been held that where the pleaded counterclaim grows out of the transaction that is relied upon in the complaint as the cause of action, the. fact that the counterclaim does not ripen into a cause of action until after the occurrence of the transaction set out in the complaint does not destroy its pleadability as a counterclaim provided it has ripened 0 into a cause of action before it is pleaded. Stinnett v. Noggle, 148 Wis. 603, 135 N. W. 167. In the case at bar it had so ripened by the payment of February 28, 1925, and it0 follows that the demurrer to the counterclaim was properly overruled. It is true that a distinction may be made between a case, as in Stinnett v. Noggle, where the indebtedness did in fact exist at the time of the commencement of the action, but it was not a complete cause of action because it had not then been laid before the town board of audit, and in a case such as here, where payment by defendant was necessary to complete his cause of action. But in each case a demurrer would lie were it not alleged that the claim had been laid before the town board of audit or that payment had been made. We are inclined to extend the principle announced in the Stinnett Case and hold that where the conditions of sub. (1) (a) of sec. 263,14 are met, the counterclaim is not demurrable where at the time of pleading it the cause of action therein stated is complete. This rule will enable parties to settle their controversies in one action and at the same time prevent the securing by purchase or otherwise of doubtful claims after the action has been begun and setting them up as counterclaims. In so far as Orton v. Noonan, 29 Wis. 541, or Noonan v. Orton, 30 Wis. 356, conflict with the rule here laid down they are overruled.

By the Court. — Order affirmed.