Carstens & Earles v. Hine

Eoot, J". This action was brought to recover a balance alleged to be due upon a promissory note made, executed, and delivered by respondents to L. P. White & Co., and subsequently assigned to plaintiff. Prior to said assignment, $300 had been paid on said note. [499] Respondents were engaged in the manufacture of shingles. Appellant was a shingle broker firm. An arrangement was made by which respondents were to sell shingles through appellant, and the latter was to credit the sum of $50 upon said note for every car-load of shingles thus sold. Respondents claim that no interest was to be charged, but in lieu thereof appellant was to have one-half of the amount allowed on account of “underweights.” Appellant disputes this. There is much controversy as to the terms of the arrangement, and as to the amount of the payments made and credits allowed. The ease was tried before the judge without a jury, and resulted in a judgment in favor of respondents. Appeal therefrom is taken. Several errors are assigned as to the reception and exclusion of evidence. As there was no jury, and as it is not made to appear that the findings and judgment were based upon any incompetent or immaterial evidence, or that the evidence excluded was wrongfully rejected, to the prejudice of appellant, we cannot sustain any of these assignments of error. During the trial, appellant asked permission to amend its complaint as to the amount credited upon the note. The trial judge took the request under advisement, and seems not to have passed upon it. In the light of the evidence, we cannot see that appellant was in any manner prejudiced thereby. Trial courts should be very liberal in allowing a party to make amendments at any stage of the proceedings, at the same time protecting the other party’s rights. But this court will not reverse a case unless it appears that a refusal to grant such amendments may have injured the ref-questing party. Appellant complains that the trial court did not make findings as to certain matters regarding which it requested them. Where a party in good faith requests the trial court to make findings as to certain questions involved, which he [500] believes to be material, it is, ordinarily, right and proper that the court should so do. If the party believes tírese questions material, he should have findings regarding them, so that, in case of appeal, he may bring up such matters without the trouble and expense of procuring a statement of facts or bill of exceptions. The fact that the trial judge differs from counsel as to what is material is not in itself a sufficient reason for denying the latter’s request for a finding upon an issue which he deems material. In the case at bar, however, we think it appears with reasonable certainty that the result would have been the same in the trial court and here, had the findings been made as requested. The evidence is conflicting and complicated. It would require much space to make an analysis of it. We are not satisfied that appellant’s contention upon the disputed issues is supported by the preponderance, or by an equal weight, of the evidence. We are satisfied that there was sufficient evidence, if believed, to sustain the trial court’s findings and judgment. The trial judge was in a better position than are we to judge of the credibility of the witnesses. In view of this and of the complicated facts and contradictory evidence, we are not disposed to disturb his findings. The judgment of the superior court is affirmed. Mount, C. J., Crow, Rudkin, and Fullerton, JJ., concur.