The answer does not controvert any of the material allegations of the complaint, and hence it admits those allegations to be true. R. S., ch. 125, sec. 31 (Tay. Stats., 1444, § 33). Had no evidence been given in the case, the plaintiff would have been entitled, on the pleadings, to judgment for the sum demanded in the complaint. The issue which was tried was made upon the counterclaim of the defendant, and is entirely independent of the cause of action stated in the complaint. The affirmative of such issue was with the defendant. And it is very clear that he should have been allowed to open and close the argument to the jury. His right to do so is not affected by the fact that another issue was made by the reply. But we do not find it necessary to determine whether the refusal of the court to allow him that privilege or right was an error injurious to the defendant, and sufficient, under the circumstances of the case, to work a reversal of the judgment, for the reason that we think the record discloses another error which is necessarily fatal to the judgment.
The learned circuit judge instructed the jury (among other things) as follows : “ So if you find from the evidence in this case that there was any defect in the machine itself, it would have been the duty of the defendant in this case to give Mr. Bonnell notice that the furnace was defective and to come there and perfect it, or take it away within a reasonable time. If he did not give such notice, and kept it, he would be deemed in the law to have waived any claim for the defect.” To this instruction the defendant excepted.
The instruction is erroneous. The. law is well settled in this *63state, by repeated adjudications of this court, that “in case of a warranty, direct or implied, where the article purchased proves defective or unfit for the use intended, the purchaser may, without returning or offering to return it, and loithout notifying the vendor of its defects, bring his action for the recovery of damages, or, if sued for the price, may set up and have such damages allowed to him by way of recoupment from the sum stipulated to be paid.” Fisk v. Tank, 12 Wis., 302; Getty v. Rountree, 2 Pinney, 379 (2 Chand., 28); Ketchum v. Wells, 19 Wis., 75; Boothby v. Scales, 27 id. (626), 638. The rule thus established is conclusive of this case, and any discussion of it here is unnecessary, and would be quite unjustifiable.
By the Court. — The judgment is reversed, and a new trial awarded.