Shafer v. Willis

Action upon Note—Evidence of Ownership—Admission of Pleadings. In an action upon a note, When it was alleged in the complaint and not denied in the answer that defendants made the note and delivered it to plaintiff as payee, the production of the note by the plaintiff at the trial, and offering it in evidence, without objection, is sufficient evidence to support a finding of ownership by the plaintiff.

Id.—Payment—Delivery of Warrants—Collateral Security—Conflicting Evidence—Finding.—Where the evidence was conflicting as to whether irrigation district warrants delivered to the plaintiff by the defendant were delivered as payment' upon the note sued upon, at their face value, or whether they were delivered as collateral security therefor, the finding of the court against the payment cannot be disturbed upon appeal.

Id.—Tender—Finding.—A finding that the allegations of the answer are untrue, excepting an allegation of tender of a sum of sixty dollars, which is found to have been insufficient in amount to operate as payment of the note mentioned in the complaint, implies a finding that a tender was in fact made which was insufficient in amount.

Id.—Objection to Tender—Demand—Object of Statute.—Where the tender of sixty dollars was based on the deduction of warrants from the note, at their face value, in respect to which the debtor Claimed a payment, and the creditor claimed that they were collateral security for the note, and demanded payment of the note, stating the amonnt due, the refusal of the tender involves an objection to its insufficiency in amount. The object of section 2076 of the Code of Civil Procedure, requiring the objection to be stated, if it is to the amount, is to inform the debtor of the amount claimed by the creditor, so that he may have an opportunity of meeting the demand.

Id.—New Trial—Newly-discovered Evidence—Counter-affidavits— Discretion.—It seems that., if a showing is made upon motion for a new trial, which satisfies the statute respecting “newly-discovered evidence, material tor the party making the application, and which he could not, with reasonable diligence, have discovr .ered and produced at the trial,” the moving party is entitled to a new trial; and the court has no discretion to try the issue of fact presented by the matter of the newly-discovered evidence, upon counter-affidavits addressed to such issue; but its discretion in determining facts presented by conflicting affidavits is limited to questions pertinent to the motion, other than the issue of fact, to which the newly-discovered evidence is addressed. [Per Temple, J., and Henshaw, J.]

In.—Cumulative Evidence—Improbable Change or Result.—Where the newly-discovered evidence is cumulative, and the court determines that the evidence, if true, would most probably not change the result, the motion should be denied.