Mulllenback v. Batz , 49 Wis. 499 ( 1880 )

OetoN, J.

The complaint, as amended, appears to be substantially sufficient and formal for a case originating before a justice of the peace.

The only important questions of fact in the case were, whether the plaintiff paid to the defendant the $20 in dispute, and the defendant either negligently or willfully failed to credit the amount on the plaintiff’s note, and exacted and received the full amount of the unpaid balance of the note without deducting and taking into accoxmt such payment; and whether the plaintiff demanded of the defendant the repayment to him of th'e $20 before suit. The jury were the proper judges of conflicting evidence and of the credibility of the witnesses; and they found both questions in favor of the plaintiff, and we think uj>on sufficient evidence.

To prove-the demand, tbe plaintiff offered to prove tbe contents of a postal card wbicb be caused to be sent to the defendant, and which the defendant received. It was in proof that this postal card was produced by tbe defendant at tbe trial before the justice, and delivered to him, and that it bad been lost or mislaid, and on search by tbe justice could not be found. Tbe contents were allowed to be proved, and, we think, properly. , Tbe witnesses do not agree as to the contents of tbe postal card, but it appears to be quite certain that it related to tbe payment of these $20, and tbe jury found that itmontained a sufficient demand for its repayment to tbe plaintiff. It is not clear that any demand was necessary before suit. Tbe defendant utterly denied having received or having been paid tbe $20, when called upon by tbe plaintiff to account for it, and, according to tbe verdict of the jury, bad converted it to bis own use. Tbe charge to tbe jury appears to be a correct statement of tbe law, and the instruction asked was properly refused.

By the Court.— Tbe judgment of tbe county court is affirmed, with costs.