Delaney v. Brunette

Cassoday, J. The cause having been tried by the court, the errors assigned on the ground of the improper admission-of testimony are not available upon this appeal. Evidence was given on the part of the defendant of numerous sums of money and several articles of property Laving passed from Brunette to Morrow prior to the time [618] wben’the latter assigned the note and mortgageto Williams. It is claimed on the part of the defendant that these sums of money and articles of property were applied as payments upon the note and mortgage in question. But the failure of the defendant to give dates and circumstances renders such testimony of but little value as against the detailed account and circumstantial statement in respect to such payments given on the part of the plaintiff by way of rebuttal. From such account and statement it appears that for many years Morrow and Brunette had considerable dealings and numerous money transactions independent of the note and mortgage in question. Thus it appears that Morrow held a judgment against Brunette, dated October 14, 1850, for $750.93; also another judgment, dated October 6, 1856, for $720.95; also a note, dated July 1, 1857, for $200; also a note, dated September 10, 1857, for $300; also a note and second mortgage on the premises in question, dated January 1, 1858, for $700; also a note of $69, dated October 30, 1865; also that Morrow took up a judgment against Brunette of $279.12, March 6, 1858; also other items. It also appears from the evidence that there were between them numerous settlements of particular transactions. The questions whether any of the payments of money and delivery of property by the defendant to Morrow were to apply upon the note and mortgage in suit, or some of the other claims mentioned, or any of the admitted payments, or failed for wánt of proof, were each and all purely questions of fact. To detail and analyze the evidence would consume valuable space without any practical benefit. After a careful examination of the testimony, it is enough to say •that none of us find any such preponderance of evidence in favor of the defendant as would authorize this court to disturb the findings of the trial court. In fact, we think the findings are sustained by the evidence. It is urged that the plaintiff should not recover because [619] of the great length of time that intervened between the maturity of the note and the commencement of this action, and quite a lengthy argument and numerous authorities have been cited in support of this contention. Some of the facts stated may have furnished a reason for the delay. The statutes of limitation were not pleaded. Had they been pleaded, they could only have been effectual to prevent personal liability, but not to prevent the foreclosure of the mortgage and the sale of the mortgaged premises. Wiswell v. Baxter, 20 Wis. 680; Knox v. Galligan, 21 Wis. 470; Potter v. Stransky, 48 Wis. 242; Hayes v. Frey, 54 Wis. 518. It is enough to say upon this point that the mere inference of payment arising from mere lapse of time is insufficient to overcome convincing proof of nonpayment. The application for a new trial was wholly insufficient, ánd hence properly overruled. To allow a defeated party, under the circumstances disclosed, to set aside a finding or open a judgment on the ground that he was taken by surprise when the opposite party gave testimony on the trial in support of his side of the issue squarely made by the verified pleadings, would be to establish a new rule of practice calculated to stimulate imaginary surprises in every defeated party without any benefit to himself, but with annoyance to the other party and additional expense to the county. We have no disposition to inaugurate such a practice. Stowell v. Eldred, 26 Wis. 504, is clearly distinguishable. By the Court.— The judgment of the circuit court is affirmed.