Schneeberger v. Dugan

261 Wis. 177 (1952)

SCHNEEBERGER, Appellant, vs. DUGAN, Respondent.

Supreme Court of Wisconsin.

February 6, 1952.

March 4, 1952.

*178 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.

GEHL, J.

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 *179 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.