¶1By the Court,
¶2This case differs from Weed vs. Page, 7 Wis., 503, and others of the kind. There the vendor’s right to the money received in part payment for the goods, depended wholly upon the contract of sale, the validity of which was questioned on the ground of fraud. "Whether the sale should stand, or fall by reason of the fraud, was optional with the vendors; and if they chose the latter alternative, their right to the money went with the contract out of which it arose, and they must restore it to the. purchaser. Their claim to the money ceased with the contract. But the condition of the present plaintiff is quite distinguishable. His right to the money received, did not depend solely upon the agreement to settle and discontinue the suit. He had á previous valid contract — a pre-existing indebtedness, to which the payment was applicable, and upon which it was in fact made. He may well insist that such application shall stand, notwithstanding he repudiates the residue of the transaction. The money was lawfully and equitably due to him, and honestly received; and it would be very remarkable were he obliged to return it in or*504der to recover what be lost, by the deception as to the note. Pierce vs. Wood, 3 Foster, 519.
¶3Nor are the plaintiff’s rights affected by the circumstance that there was a dispute as to the amount of interest due upon the note and mortgage. Deduct the money paid, and there is still a balance due the plaintiff, according to the claim made by the defendant himself.
¶4Besides, this being a suit in equity, and the defendant having gone to trial on. the merits, without objection by answer or demurrer, the failure of the plaintiff to return the money, or to make the offer, would not seem under any circumstances to be fatal to the action. Dunn vs. Amos, 14 Wis., 106; McCormick vs. Malin, 5 Blackf., 533.
¶5Judgment reversed', and cause remanded with directions that the court proceed to give judgment in accordance with this opinion.