Nickel v. Black

21 N.W.2d 658, 248 Wis. 122, 1946 Wisc. LEXIS 364

• Court: Wisconsin Supreme Court
• Decided: December 3, 1945
• Status: Published

Opinions

Barlow, J.

After receiving respondents’ answer appellant demanded a bill of particulars under sec. 263.32, Stats. An original and copy of the bill of particulars were forwarded to appellant’s counsel after the expiration of ten days from date of demand. Appellant’s counsel retained a copy, returning the original with a notation thereon: “Received copy this 29th day of September, A. D. 1944.” The action did not come on for trial until April 16, 1945, and counsel objected to respondents being permitted to give evidence relative to the items in the account, as the bill of particulars had not been served within the ten days required by statute. No proof was offered that this interfered with appellant’s counsel preparing for trial or that he was deprived of the opportunity to present evidence to disprove the bill of particulars, and there is no evidence that respondents’ counsel was informed that objection would be made to the receipt of the evidence to sustain the bill of particulars as served at the time of trial. It is considered that the court properly received the evidence over appellant’s objection.

The question in dispute in this action is whether a payment was made on October 1, 1942, in addition to the payment made by check October 12, 1942. Agnes Black testified that on October 1, 1942, she paid the sum of $500 in cash and received the yellow copy of receipt number 992, dated that day. It is undisputed that a payment of $500 was made by check dated October 12, 1942. Credit is claimed for the two payments. Appellant denies that a payment of $500 in cash was made on October 1, 1942, and explains that the receipt dated October 1, 1942, is the receipt for the postdated check of October 12,1942, which receipt was dated back to October 1, 1942, so as to prevent any freezing of lumber by the OPA. To sustain his position he shows that triplicate receipts issued from an auto-graphic register containing rolls of receipts in triplicate demonstrate that receipt 992 must have been issued on or about October 9, 1942, which is the date he claims the postdated check of October 12, 1942, was delivered. This is confirmed^ by the dates on prior and subsequent receipts to receipt number 992. Only one receipt was issued for the two-payments in question.

The trial court found that payment'was made on October 1, 1942, as claimed by respondents, for which they were entitled to credit. The sole question is whether this is against the great weight and clear preponderance of the evidence. The trial court had an opportunity to observe the witnesses and weigh their credibility. He undoubtedly gave due consideration to the dates on which receipts of prior and subsequent numbers were issued, and after due consideration concluded that the payment of $500 had been made on October 1st, as claimed by respondents. To substantiate this conclusion there is the testimony of Agnes Black, together with the receipt issued by appellant dated October 1, 1942. Under this statement of facts it is considered that the judgment is not against the great weight and clear preponderance of the evidence.

Appellant also contends that defendants should not have been permitted to interpose a counterclaim on the day of trial. After allowing credit of the amounts which it was agreed by both parties respondents were entitled to, it was also agreed that in the event the item of $500 which was in dispute was allowed, respondents had made an overpayment of $50.45, for which they were entitled to refund as an overpayment. It was for this amount that the court permitted a counterclaim to be interposed. This was proper under sec. 269.44, Stats., which provides:

“The court may, at any stage of any action or special proceeding before or after judgment, in furtherance of justice and upon such terms as may be just, amend any process, pleading or proceeding, notwithstanding it may change the action from one at law to one in equity, or from one on contract to one in tort, or vice versa; provided, the amended pleading states a cause of action arising out of the' contract, transaction or occurrence or is connected with the subject of the action upon which the original pleading is based.”

In Turner Mfg. Co. v. Gmeinder (1924), 183 Wis. 664, 669, 198 N. W. 611, the court said:

“It is well settled that when a trial court keeps within the limitations imposed by the statute as to allowing amendments, the power is very broad, resting in sound discretion, and the decision will not be disturbed except for a clear abuse of judicial power.”

See also Kaegi v. Industrial Comm. (1939) 232 Wis. 16, 285 N. W. 845.

By the Court. — Judgment affirmed.