Opinion
April 8, 1957 —
May 7, 1957.
APPEAL from an order of the circuit court for Green Lake county: RUSSELL E. HANSON, Circuit Judge. Affirmed in part; reversed in part.
For the appellant there was a brief by Schubring, Ryan, Petersen Sutherland of Madison, and oral argument by William Ryan.
For the respondent there was a brief and oral argument by James L. McMonigal of Berlin.
On December 10, 1953, Wisconsin Power Light Company commenced action against Berlin Laundry Company, Inc., to recover for public-utility gas service.
The complaint contains allegations similar in all respects to the complaint in Wisconsin P. L. Co. v. Berlin Tanning Mfg. Co., ante, p. 554, 83 N.W.2d 147, except that the period covered by the complaint was from May 13, 1953, to September 17, 1953. The alleged correct billing for gas delivered to the defendant during that period was $2,376.60. The amount paid by defendant was $322.20 and the balance allegedly owing to plaintiff was $2,054.40. The defendant served an answer which except for matters of form answered the allegations of the complaint in a manner similar to the answer in the Tanning Company Case. The defendant also pleaded a setoff and counterclaim which asserted the existence of an operating loss by allegations similar to the counterclaim in the Tanning Company Case. It further alleged as a setoff and counterclaim that prior to May 13, 1953, defendant was solicited by plaintiff to substitute gas-fired equipment for the coal-fired equipment then being used by defendant upon representations that defendant's cost of operation would be substantially reduced; that defendant entered into a contract with a heating contractor for the installation of gas-fired equipment upon the condition that if after a trial period the gas-fired equipment could not be operated at a cost comparable to or less than the cost of operating the coal-burning equipment, the gas-fired equipment would be removed and the coal-fired equipment reinstalled at no cost to the defendant; that in reliance upon the correctness of the monthly statements submitted by plaintiff, defendant released the heating contractor from any further liability under his guaranty; that the negligence of plaintiff's employees in computing the charges "resulted in defendant releasing a valuable legal right as aforesaid, to defendant's damage in an undetermined amount which defendant claims as a setoff and counterclaim against any amount which may be allowed to the plaintiff in this action."
Plaintiff demurred to the counterclaim on the same grounds as in the Tanning Company Case and moved for summary judgment upon similar affidavits. On September 27, 1956, the circuit court entered an order overruling plaintiff's demurrer and denying plaintiff's motion for summary judgment and its other motions for judgment and plaintiff appealed from the part of the order overruling the demurrer and denying the motion for summary judgment.
In all respects the issues in this case are present in the Tanning Company Case, and are disposed of in accordance with the opinion in that case.
By the Court. — Order affirmed in so, far as it denied plaintiff's motion for summary judgment; order reversed in so far as it overruled plaintiff's demurrer to the counterclaim; cause remanded with directions to sustain the demurrer and for further proceedings according to law.