(concurring) : I have signed and do concur in the thorough and well-considered opinion by Chief Justice Christianson. By another way I arrive at the same result.
The case illustrates that some judges and some lawyers are slow to learn the simple fact that it is not the purpose of the law or the courts to aid one person in the robbery of another. The appeal is from a *147judgment on a directed verdict against the defendant for nearly $4,000 —the amount of a Texas judgment for the balance due on 39 acres of worthless land sold by the plaintiff to the defendant. Defendant is an innocent and unlearned Russian farmer of Logan county, North Dakota. He cannot read or write English and he does not know the tricks and deceptions of Texas land traders. In the spring of 1915 the plaintiff came to the farm of defendant in Logan county and by divers false representations induced the defendant to buy 39 acres of worthless land in Texas at $200 an acre. He assured defendant that the land was well worth $200, and that it was irrigated land and would produce three crops in a year. Without seeing the land or knowing anything of it defendant paid the plaintiff, in cash, $1,000, conveyed to him 40 acres of land in Logan county worth $1,600, and gave his promissory notes and obligations for the balance. Then defendant went to the Texas land, spent about $800 in trying to cultivate and improve it, and found that only 3 acres of it could be irrigated, and that it was of no value. Then he abandoned the land and returned to North Dakota. But as he was leaving Texas the plaintiff served on him process in an action to recover the balance due on the contract, and by default a judgment of foreclosure was taken on which the Texas land was sold and bid in by the plaintiff for about 10 per cent of its price to defendant. Now the plaintiff has his Texas land and the improvements, worth, at his figure, $8,000, and his cash payment, $1,000, his land payment, $1,600, and he seeks to recover $4,000.
These facts do constitute a counterclaim on which defendant should recover about $8,000, which would more than offset the plaintiff’s judgment. The defense is really a proper counterclaim which is connected with the subject of the action. Hence, on the facts stated in the answer, defendant is justly entitled to recover the same as if he had brought an action against the plaintiff. It is true that the counterclaim and cross action in the answer is defective in form, but that can be easily amended. The cause of action stated in the answer was not in any manner adjudicated by the Texas court, and as the plaintiff has appeared in our courts, he should not be allowed to depart and to dismiss the action without a proper judgment against him, which will more than offset the Texas judgment.