- 78 - UBC had mistakenly used a 7-year recovery period. In the answer, respondent merely denied petitioner’s averment. In their respective trial memoranda, neither party identified the discrepancy in treatment between the furniture and fixtures and the 1990-91 furniture and fixtures. In their stipulations, however, the parties recognize the discrepancy, and petitioner concedes that it is not entitled to any additional depreciation with respect to the 1990-91 furniture and fixtures. On brief, petitioner argues that the only applicable recovery period issue before the Court concerns the furniture and fixtures. Respondent argues that the Court must also determine the applicable recovery period with respect to the 1990-91 furniture and fixtures because that issue either (1) was put in issue by the petition or (2) was tried with consent of the parties. We do not believe that petitioner intended to put into issue the applicable recovery period with respect to the 1990-91 furniture and fixtures, nor do we believe that that issue was tried with petitioner’s consent. Rule 31(d) requires us to construe all pleadings to do substantial justice. Substantial justice would not be done were we to hold petitioner to an unintended construction of its pleading, especially in light of respondent’s uninformative response. Clearly, the issue was not tried with petitioner’s consent in light of the stipulation and the lack of any notice by respondent that he intended to raise the issue. The parties have relied only on the stipulated facts in briefing this issue, so we cannot conclude that petitioner failed to object to evidence that should have put petitioner on notice that the applicable recoveryPage: Previous 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 Next
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