Appellant has filed a petition for a modification of our opinion herein so as "to direct the district court who tried said cause to enter judgment in favor of the appellants." In support of the motion appellant urges that respondent's action was not commenced and has not been prosecuted for damages but rather for injunction on account of alleged fraud and failure of consideration. That is true, but it is also true that respondent has consistently contended that he should have been supplied with a back beater at the time the huller was delivered, and that he suffered a direct loss on account of the failure of the company to deliver the back beater with the machine. So it happens that, under the peculiar circumstances of this case, while the company is *Page 598 entitled to proceed with its foreclosure, the plaintiff here (defendant in the foreclosure proceeding) should be allowed to offset his indebtedness by the amount of whatever damages (if any) he has sustained which have arisen out of the transaction involved in the litigation. (Sec. 5-613, I. C. A.; Willman v.Friedman, 4 Idaho 209, 38 P. 937, 95 Am. St. 59; Wollan v.McKay, 24 Idaho 691, 135 P. 832; First Sav. Bank v. Sherman,33 Idaho 343, 195 P. 630; Tage v. Tage, 36 Idaho 472,211 Pac. 548.)
For these reasons when this case goes back to the lower court, the plaintiff should be allowed to amend his complaint, if he desires to do so, in such manner as to present the issue as to whether he should have been furnished a back beater and what, if any, damages he has sustained by reason of the alleged failure of the defendant to furnish him a huller, equipped with a back beater, as he contends should have been done.
It has been suggested that the appellant, Allis-Chalmers Company could not be held for the damages here claimed, for the reason that it is a mere assignee of the note and mortgage and did not make the sale to respondent. That contention is answered by the fact that the Allis-Chalmers Company took over the entire business and assets of the Advance-Rumely Company and when it took the note and mortgage here in question, it received them subject to any defense that the respondent West might have against them arising out of the transaction on which they were given.
Morgan, C.J., and Holden and Givens, JJ., concur. *Page 599