Evenson v. Bates

| Wis. | May 31, 1883

Cassoday, J.

To authorize a review of the evidence, exceptions should be taken to the findings of fact (sec. 3070, B. S.), and the same should be incorporated into the bill of exceptions. Sec. 2870, B. S. Here no exceptions were taken to any of the findings of fact or conclusions of law;. It is urged, however, that exception was taken to the receipt in evidence of the $1,500 note, and as that was executed by Mr. Bates prior to' the mortgage, it is claimed that the court improperly found that the mortgage was given, in part, to secure that note, and that the question may be reviewed on this appeal, notwithstanding the failure to except to the findings. Assuming, for the purposes of this case, that such right to review exists, still we are clearly of the opinion that the decision of the trial court was correct. The written agreement was made the same day as the mortgage, and refers to it in such a way as to become, in equity, a part of it, and hence the two are to be construed together as one paper. Gillmann v. Henry, 53 Wis., 468, and cases -there cited. It stands confessed that none of the notes were made on the day the mortgage and agreement tvere exe-icuted. The $1,500 note was made before and the others •afterwards, as moneys were advanced from time to time by the plaintiff. These things are fully recited in the written agreement. Counsel who drew the written agreement and •testified to its execution on the trial, was asked on the argument here why the fact of the $1,500 note being held by the plaintiff was recited. in the agreement, if it was not ‘thereby intended that it should be secured by the mortgage. He frankly answered that he could not tell. On examination of the reeord we find that the same query seems to 'have occurred to tlte trial judge, for he said, there is no explanation that can be made why the sum of $1,500, said to 'be represented by notes, should be alluded to in the written .•agreement at all, unless it be for the purpose of showing •that it was to be secured by the mortgage. This, we think, Is obvious to any one, and renders further discussion unnecessary, even on the defendant’s theory of the practice as to «exceptions.

By the Court.— The judgment of the circuit court is .affirmed.