Opinion
February 25, 1947. —
April 8, 1947.
APPEAL from a judgment of the circuit court for Burnett county in each of the above-entitled actions: CARL H. DALEY, Circuit Judge. Affirmed.
For the appellants there was a brief by Crawford Crawford of Superior, and oral argument by Brandon E. Crawford.
For the respondent there was a brief by S. J. Auringer of Grantsburg, attorney, and Douglas Omernik of Spooner of counsel, and oral argument by Edward E. Omernik.
The first cause of action was brought by the plaintiff against the defendant, Harry Pursel, to recover the sum of $1,838.96, with interest from November 12, 1943, on an open account for goods sold and delivered. The defendant denied liability and counterclaimed on account of services rendered, damaged merchandise shipped by the plaintiff and injury to his business in the sum of $38,996.15.
In the second cause of action the plaintiff alleges that there was due and owing from Harry Pursel and Coletta M. Pursel, his wife, the sum of $1,500 on a promissory note, executed by the defendants to the plaintiff on February 15, 1939, which was assigned to the plaintiff on August 15, 1939, no part of which had been paid.
The defendants denied the execution of the note dated February 15, 1939, pleaded the statute of limitations of the state of California, and alleged payment of $1,000.
The cases were tried as one and there is but one bill of exceptions. The trial court found as to the action against Harry Pursel that the defendant was entitled under his counterclaim to $1,900 spent as advertising upon which the plaintiff had paid $1,000 and that there remained due on plaintiff's claim of $1,838.96 the sum of $938.96, with interest thereon at six per cent per annum from November 12, 1943, to the date of the trial, amounting to $159.
The court further found that defendant's counterclaim in the sum of $38,996.15 for loss of spoiled beer and loss of business had not been sufficiently and properly proved and disallowed it in toto. Judgment was rendered accordingly.
In the action against Harry Pursel and Coletta M. Pursel, the court held that the claim of the plaintiff was not barred by the statute of limitations; that no part of the indebtedness had been paid by the defendants; that there was no accord and satisfaction as claimed by the defendants, and that the note was in no manner discharged nor the liability thereon affected by a payment made by the defendant Harry Pursel to Dun Bradstreet in the month of October or November, 1943. The court directed judgment in favor of the plaintiff against the defendants in the sum of $2,261.25.
Appeals were taken from both judgments respectively.
The determination of the issues in these actions depends almost entirely upon the credibility of the witnesses for the respective parties. Such documentary evidence as was offered and received tends to support the plaintiff's contentions. The trial court gave the matter careful consideration. He saw and heard the witnesses. We have carefully reviewed the evidence offered upon the trial and find that the trial court reached the right determination. Certainly his conclusions upon the evidence are not against the clear preponderance and great weight of the evidence, and for that reason the court's findings cannot be disturbed.
Inasmuch as the controversy deals almost entirely with questions of fact no useful purpose would be served by setting out the evidence in detail. The claim of the defendant, Harry Pursel, that the plaintiff was indebted to him in the sum of $38,996.15, in view of the evidence offered by him upon the trial to sustain it, is sufficient of itself to cast doubt upon the probity and good faith of the defendant, Harry Pursel.
By the Court. — Judgment in each case is affirmed.