Bulow v. Hetting

Winslow J. This was an action upon a promissory note for $82.30 and interest. The defendant admitted the execution of the note, but alleged payment, and also set up a counterclaim consisting of an account for a considerable-number of items of lumber and other personal property sold, to an amount largely in excess of the note. The action was tried by the court, and findings made to the effect: first, that there was a mutual account between the [683] parties; second, on a statement of sucb account the plaintiff' should be credited a number of specific items of cash advanced, including the amount of the note in suit, aggregating $552.03; that the defendant should have credited on such account specific items of goods and merchandise, or the proceeds thereof, amounting to $191.48, the items of said account on both sides being set forth in detail; third, that the balance due the defendant from the plaintiff was. $239.45,— and for this amount, with interest and costs, judgment wTas rendered, and a subsequent motion to set aside the judgment and for a new trial was overruled. The plaintiff did not except to the finding so far as it found the amounts which should be credited on the plaintiff’s side of the account, but excepted generally to the finding which determined the defendant’s credits upon the account; said finding being composed of ten separate items. No separate exception was preserved to any specific item of the account. One at least of these items is undisputed, and a number of them are amply supported by the evidence. In this situation the rule is well settled that there is no available exception. Warner v. Guokow, 90 Wis. 291. This finding, which states the account between the parties, really contains the gist of the whole case; and, there being no exception to any part of it, it cannot be disturbed upon appeal. Moreover, the findings all seem to be sufficiently supported by the evidence in any event. A number of objections and exceptions to rulings upon evidence are preserved, but they are trivial and could not affect the result in an action tried by the court. We do not deem it necessary to notice them in detail. By the Gourt.— Judgment and order affirmed.