Action begun August 19, 1954, by Frank Kassien against Louis Menako for damages. Issue was joined, and defendant moved for summary judgment. The order denying the motion was entered December 17, 1954. The complaint alleges that on the 7th day of July, 1951, the plaintiff and the defendant entered into an agreement whereby defendant agreed to purchase plaintiff's farm, together with personal property and crops; that the defendant entered into possession August 1, 1951, and occupied the premises and used the personal property until December 1, 1951, at which time he tendered possession to plaintiff; and that during the occupancy defendant caused damage and waste to plaintiff's property. The answer admits certain facts and denies others, raises issues, and alleges that the present action by plaintiff and a former action involve the same issues; that in the former action the plaintiff did not present the issues involved in this action; and that because of his failure so to do, if any cause of action existed he is precluded from maintaining it now. And defendant alleges:

"That said action commenced by this defendant in 1952 was litigated on the issues set forth in the complaint and the amended answer, under the allegations of which answer the plaintiff herein claimed the right to retain $3,000 theretofore paid by defendant herein to plaintiff herein; that the issue of damages to plaintiff herein was before the court in the aforesaid action and thus defendant had his opportunity to establish such claim at said time."

Upon motion for summary judgment, the trial court entered the following order:

"The defendant having filed a motion for a summary judgment in the above-entitled matter and the same coming on for hearing on the 18th day of October, 1954, the defendant, Louis Menako, appearing in person and by Donald E. Reiland, his attorney, and the plaintiff appearing by his attorney, Richard S. Brazeau, and evidence having been taken and the court being fully advised in the premises,

"It is hereby ordered that said motion for a summary judgment be dismissed on its merits and that the plaintiff be entitled to $10 motion costs."

FAIRCHILD, C. J.

The claim by appellant that the action involves the same issues disposed of in the former action in which Louis Menako was plaintiff and Frank Kassien defendant, which case came here on appeal in Menako v. Kassien, 265 Wis. 269, 61 N.W.2d 332, cannot be upheld.

The plain and controlling question now before us is: Did appellant damage respondent's property and commit waste when he had that property in his possession? The appellant urges that the issues raised by the pleadings cover the transaction passed upon in the former action, and, further, that the respondent had "his opportunity to establish such claim at said time." It is true that if respondent knew of the destruction of his property or damage to it, he could have counterclaimed for such damage. Even under those circumstances he was not required to present that cause of action at that time. This cause of action is upon a different claim from any submitted in the former case. In the former case, the appellant herein succeeded in securing a judgment which required the parties to place each other in their former positions. The respondent herein complains that he has not been so restored. Had he been advised of the damage at the time and seen fit to interpose a counterclaim, he might have done so, but he was not obliged to do so at that time, and the fact that he did not do so would not and does not prevent him from maintaining this action at this time. Huntzicker v. Crocker, 135 Wis. 38, 115 N.W. 340; Ressequie v. Byers, 52 Wis. 650, 9 N.W. 779; North Baltimore B. G. Co. v. Altpeter, 133 Wis. 112, 113 N.W. 435; Linker v. Batavian Nat. Bank of La Crosse, 244 Wis. 459, 12 N.W.2d 721, 14 N.W.2d 496; Nehring v. Niemerowicz, 226 Wis. 285, 276 N.W. 325; 30 Am. Jur., Judgments, p. 934, sec. 190; sec. 263.14, Stats.

The trial court properly denied appellant's motion for summary judgment.

By the Court. — Order affirmed.