The defendant moved in the court below to dismiss the action for insufficiency in the service of the process. This motion having been overruled, it answered and went to trial on the merits. This must be held a waiver of the error, if any, in overruling the motion. If a party wishes to stand upon the objection that he is not in court, he must keep out, except for the purpose of raising that question. It would give him an unjust advantage, to allow him, after such a motion had been ruled against him, to go into coart for all the purposes of a trial on the merits, in which, if he obtained a judgment, it would be valid in his favor, but in which, if the other party should obtain a judgment, and the service of process had been defective, he could inevitably reverse it, upon the ground that he had never been got into court at all. Lowe v. Stringham, 14 Wis. 225.
The defendant insists that the answer sets up a counterclaim, and that, as there was no reply, it was to be taken as true, and the defendant entitled to judgment *637upon it. The action is to recover for services of the plaintiff as agent of the defendant, under a contract to employ him for five years at a salary of three thousand dollars per annum, payable monthly, besides his traveling and hotel expenses. The answer sets up that the alleged contract was in writing, and was procured by the false and fraudulent representations of the plaintiff, in regard to his efficiency as an insurance agent, and as to facts tending to show such efficiency. The answer does not profess to state this as a counterclaim. It states it as a defense only. But the prayer for judgment asks that the contract be adjudged void, and be delivered up and canceled.
There is no doubt that these allegations-show a proper defense. There is some doubt whether they constitute a proper counterclaim. If the plaintiffs had brought no suit on the contract, there does not seem any substantial reason why a court of equity should have interposed its powers to adjudge it void, and cause it to be delivered up and canceled. Inasmuch as the fraud would always constitute a complete defense at law, and the contract was of such a nature that no transfer could change the rights of the parties, it would seem unnecessary to sustain a separate suit by the company, in order to have a fraudulent contract for mere personal services canceled.
But however this may be, the question has been determined by this court. In McConihe v. Hollister (19 Wis. 269), which was an action to foreclose a mortgage, the answer alleged, without stating it in form as a counterclaim, that the note and mortgage were procured by fraud, and asked to have them delivered up and canceled. But it was held that, as the facts alleged constituted properly a defense, they would be so regarded, not being stated in form as a counterclaim, although they might have been sufficient for one. This is a still clearer case for holding that rule, for it is much more *638doubtful whether a separate action conld be maintained to cancel a fraudulent contract for mere personal services, than it is whether it could be done to cancel a fraudulent note and mortgage.
After this answer was served, the defendant’s counsel treated its allegations as being at issue, by taking testimony on commission to substantiate them. And we are satisfied that the court below properly held it to be a defense.
It may be that some portions of the instructions asked by the plaintiff’s counsel, and given, may have been abstract and inapplicable to any question which the jury had to determine. The one .including all the various remedies which the plaintiff might elect, on a breach of the contract by the defendant, seems to have been of this character. The only question in this case was, whether he had a right to the one which he did elect. But there was nothing in this that seems to have been capable of misleading the jury in respect to the questions they had to determine, which were submitted to them very fairly for both sides.
The instructions asked by the defendant, which sought to authorize the jury to reduce the plaintiff’s damages, if they should find in his favor, by the amount which he might have earned elsewhere, after his wrongful discharge, were properly refused. The rule in such cases is, that although the damages may be so reduced, yet the burden is on the defendant to show affirmatively that the plaintiff might have had employment and compensation elsewhere. Here the defendant offered no such proof, and there was therefore no question upon that subject to submit to the jury.
It is objected that the verdict was against the evidence, and that therefore the motion for a new trial ought to have been granted. This objection never prevails in this court, after such a motion has been overruled in the court below, where there is any legitimate construction *639of tlie evidence by which the verdict can be sustained. The only serious question which the objection presents is, whether there was any such conflict of evidence as to the fact that the plaintiff represented that he had built up a business of over $300,000 annual premiums for the Connecticut Mutual Life Insurance Company, and that this was materially untrue, as would enable us to sustain the verdict. Those certainly were matters material to the contract, and constituted the very essence of the alleged fraud.
If we consider only the general statements made by the witnesses as to the representations, it would be perhaps difficult to sustain the verdict upon this point. But there is one feature of the testimony which the jury were entitled to credit, and which was sufficient to sustain a verdict by which they avoided the conclusion of any fraud in these representations. The plaintiff stated that, prior to the time of his employment, during the negotiations, he exhibited to Johnson, the general agent who employed him, a memorandum book showing a detailed statement of the old and new business of ten months of the year referred to, in which he had built up the business for the Connecticut company. He says they looked over all the figures in this book together, and he explained every thing to Johnson. Now these are the very figures on which the defendant relies to show the falsity of the representation, in respect to having built up a business of over $300,000 annual premiums. And the jury were warranted in believing, that though such a representation was made, it could not have been relied on by Johnson, but that he rather entered into the contract upon the faith of the actual figures which were submitted to him. In view of the effect which the jury were warranted in giving to this fact, that the figures showing the actual state of that business were submitted and fully explained to Johnson, I should not feel authorized to say that there was no legitimate con-*640straction of the evidence by which, the verdict could be supported. The judgment must be affirmed.
By the Court —Judgment affirmed.