Kenezleber v. Wahl

Fitzgerald, C. This is an appeal by the defendant from an order granting plaintiff’s motion for a new trial on the grounds of newly discovered evidence, and of surprise at the trial.

The action was brought by plaintiff on a promissory note executed to him by the defendant for $1,080. The answer contains a general denial of the allegations of the [206]complaint, and sets up, by way of counterclaim, plaintiff’s indebtedness to defendant in the sum of $1,557.88, “ for goods, wares, and merchandise sold and delivered to the plaintiff, and for cash loaned, paid out, and advanced to plaintiff, between the nineteenth day of May, 1886, and the eighth day of October, 1888, upon open, current, running, and mutual account by and between the parties hereto.”

The trial of the issues thus joined resulted in a verdict and judgment for the defendant, which the plaintiff moved to set aside and vacate, and to grant a new trial, on the following among other statutory grounds: “Accident and surprise which ordinary prudence could not-have guarded against; newly discovered evidence material for the plaintiff, which he could not with reasonable diligence have discovered.”

The defendant, by way of defense, and in support of his counterclaim, gave evidence tending to show the payment in full of the note sued on, by the sale to plaintiff of a saloon theretofore owned and conducted by defendant in the town of Galt, and by the further sale and delivery to him, at his instance and request, of wines, liquors, and cigars, and the advancement of money at different times extending over a period of more than twenty-eight months, wherefore and by reason of which plaintiff became and is indebted to him in excess of the amount stated on the face of the note in the sum of $377.

The newly discovered evidence set forth in the moving affidavits, identified by the judge as having been used at the hearing of the motion, and not answered by counter-affidavits, is to the effect that, during the whole of the time the plaintiff resided in Galt, he was in the employ of the defendant as the manager of his saloon in that place; that over the door thereof was a sign with the name of the defendant painted thereon as proprietor, and that he was never at any time engaged in any kind of business in that place for himself; that about two months before the saloon was closed and the business discon[207]