¶1The substance of the proposed amendment to the answer is a counterclaim for part of the price of the logs therein mentioned, which the plaintiffs have failed to pay as they agreed. It is -not averred that the note was paid by the sale of the logs to the plaintiffs, but only that thereby the means was *375placed in plaintiffs’ hands, ■which they agreed to apply in payment of the note at a future day, but failed to do so. Evidence of those facts, had they been interposed as a defense in the suit on the note, would not have sustained a plea of payment of the note, because no payment thereof was made; but such evidence would have supported a counterclaim for the sum which the plaintiffs so received and failed to apply, had such counterclaim been interposed.
¶2The alleged breach by the plaintiffs of their agreement to apply the proceeds of the logs in payment of the note when the same should fall due, could not have been available to the defendant in the suit upon the note, as a defense, but only as a counterclaim, which is in substance a cross action. This being the case, the defendant had his option, either to interpose such counterclaim in the action against him on the note, or to bring an action against the plaintiffs to recover back the sum which they had thus received and failed to apply. Had the defendant paid the note, or, not having paid it, had he interposed such breach of the plaintiffs’ contract as a counterclaim in the action upon the note, and failed for any reason to get it allowed, he would doubtless be estopped by the judgment from interposing the defense of payment, or such counterclaim, in this or any other action, and also from maintaining an action therefor. To this effect are the cases cited by the learned counsel for the plaintiffs. But, as already observed, we have no such case before us.
¶3The cases of Woodward v. Hill, 6 Wis., 143, and Driscoll v. Damp, 17 id., 419, are conclusive of the proposition, that, taking the averments of the proposed amended answer as true, the defendant is not estopped by the Minnesota judgment from interposing such counterclaim in this action.
¶4It is objected that the proposed answer shows upon its face that the statute of limitations has run upon the defendant’s demand. Perhaps this is true, but we do not decide whether it is or not. We are of the opinion that this objection is not *376available to the plaintiffs on this motion. When the amended answer is interposed, the plaintiffs may answer the statute of limitations, or abstain from doing so, as they may be advised. It is purely a personal privilege, and can only be made available by answer.
¶5We think the defendant, in his affidavit accompanying the affidavit of merits, has satisfactorily excused his failure to interpose the counterclaim in the first instance ; and the application for leave to amend seems to have been made within a reasonable time after he was fully advised of the necessity for a further answer. Upon the whole case we must hold that in the exercise of a sound judicial discretion the amendment should have been allowed by the circuit court.
¶6By the Court— The order appealed from is reversed, and the cause remanded with directions to the circuit court to grant the application on such terms as to that court shall seem just and equitable.