Donner v. Genz

The following opinion was filed June 21, 1906: SiebecKER, J. Error is assigned upon the ground that cne evidence is not sufficient to sustain plaintiff’s cause of action. Nespondent argues that the answer contains no denial of plaintiff’s cause of action, and that judgment should have [247] been awarded upon such, default for the amount claimed. The record discloses that the county court held that the answer sufficiently alleged a denial of plaintiff’s claim, and the circuit court apparently so treated it or deemed the pleading amended to conform to the evidence actually presented. We find nothing in the record showing why the evidence, which was received without objection, was not properly before the circuit court and to be considered in determining the rights of the parties. Under such circumstances the pleadings will be deemed to be amended, on appeal, so as to admit the evidence. Packard v. Kinzie Avenue H. Co. 105 Wis. 323, 81 N. W. 488; Coe v. Rockman, 126 Wis. 515, 106 N. W. 290; Gill v. Rice, 13 Wis. 549. The judgment appealed from awards plaintiff recovery of a balance claimed to be due him for the purchase price of logs sold to the defendant. The evidence adduced on this question is in conflict. The county and the circuit courts both found that this cause of action was established by the evidence. We have read the evidence and find that it is of such weight in support of. the findings of fact of the trial courts that we cannot say that the findings are against the clear preponderance of the evidence. The judgment should stand. By the Court. — Judgment affirmed.