Estate of Mayer , 253 Wis. 32 ( 1948 )

Martin F. Mayer died on June 28, 1946. The appellant filed a claim against the estate on three notes, one for $600, dated July 1, 1928, referred to as note 1; one for $500, dated May 1, 1933, referred to as note 2; one for $600, dated June 30, 1934, referred to as note 3. After the time for filing claims had expired the claimant moved to amend the claim by setting up a further note dated January 29, 1934, as substitute for note number 3. The court denied the motion to amend. At the time the motion was made the note was more than six years past due. Whether the statute had been tolled does not appear.

Note number 3 not having been found, there was a hearing upon notes 1 and 2. The claimant appealed from the judgment disallowing his claims and from the order denying the motion of claimant to substitute note number 4 for note number 3. Other facts will be stated in the opinion. The trial court denied claimant's motion to amend the claim by substituting for the note dated June 30, 1934, which was lost, note for $400 dated January 29, 1934. The court denied the motion on the ground that the time for filing claims having expired claimant was not entitled to file the $400 note. The trial court made this ruling upon the authority of Estate of Von Nobel (1941),239 Wis. 233, 1 N.W.2d 76. The trial court was correctly of the opinion that the proposed amendment, if allowed, would materially alter the claim as filed. The dates of the notes are different. The amounts are different, and even the interest rate is different. The original claim was based upon a certain promise to pay and the note proposed to be introduced by the amendment was based upon a different promise to pay a different amount at different times.

Upon their face notes 1 and 2 were barred by the six-year statute of limitations. Claimant sought to avoid the effect by showing a credit of $50 on each note, such credits having been made under the following circumstances: Kenneth Mayer, a son of the deceased, testified that he knew the plaintiff bought a rifle from his father in the fall of 1945, and his father told him that the $100 was to be applied to notes that were owed to Mr. Darling. He was not present when the transaction took place and he did not know which notes were involved. The record discloses the following:

The Court:

Q. It was after the transaction that your Dad told you?A. Yes, I wanted to keep the gun but Dad told me he had to use it to make notes good. The only reason I wanted the gun was for sentimental reasons. I wanted it for my collection.

"Q. Now, I understand it was to be applied on notes. Can you tell which notes? A. No, I don't know. I don't know the amount of the notes."

It does not appear that the payee made any direction as to which of the four notes the $100 was to be applied.

It is considered that under the circumstances of this case the trial court correctly held that the delivery of the deer rifle was insufficient to establish an intention on the part of the payor that the proceeds should be applied upon any particular note. Estate of Shea (1929), 198 Wis. 613,225 N.W. 326. See also Anderson v. Nystrom, 103 Minn. 168,114 N.W. 742, 13 L.R.A. (N.S.) 1141.

The claimant also moved for a new trial on the ground of newly discovered evidence. Without setting out the affidavits it is considered the trial court correctly held that the showing made in support of the motion for a new trial was insufficient. At best the evidence, if competent, was cumulative, and its introduction would not in all probability have changed the result, nor is there a showing of sufficient diligence.

By the Court. — Judgment affirmed.

MARTIN, J., took no part.