Francis v. Baker

This was an action upon certain obligations held by the plaintiff against the defendant to recover the amount due upon them. The defence was that there had been a mutual borrowing and lending, and that the plaintiff, if entitled to recover at all, was only entitled to recover a balance of account. In support of this claim the defendant produced certain vouchers which were allowed to go to the jury as evidence to reduce the plaintiff's claim, if upon the testimony the jury thought they should be so applied. The jury returned a verdict for the plaintiff for the full amount of his claim. The defendant petitions for a new trial upon three grounds.

1. One ground is newly discovered testimony. The defendant produced the plaintiff's receipt, dated December 27, 1859, for five promissory notes, which were stated in the receipt to be to the defendant's credit in account. The notes were made by Jeremiah Knight, payable to the order of the defendant in sixty and *Page 111 ninety days, and in four, five, and six months. They amounted in all to $5,343.47. One of them, namely, the note payable in four months, being for $1,100.00, was embraced in this suit. Aside from that, the earliest obligation sued is dated February 28, 1860. The plaintiff testified that the defendant was owing him six or seven thousand dollars when he received the notes. If this be true, the notes having been received on account, would not be applicable to reduce the account in suit, for every item of the account in suit, except the note at four months then received, was of subsequent origin. The plaintiff further testified that he surrendered, in exchange for the notes, obligations which he held against the defendant to an equal amount, so that on his part the transaction was completely adjusted and closed. The jury evidently believed this, to the extent at least that the notes were received on an account then existing against the defendant to an equal or greater amount; for they show that they so far believed it by giving the plaintiff a verdict for the full amount of his claim without deduction or abatement. The plaintiff made still another statement, namely, that none, or at most only one, of the notes was paid to him, and that, becoming disgusted with the notes on this account, he returned them to the defendant, who gave him other paper for them. It will be seen that this statement is in itself immaterial, for if the defendant was entitled to a deduction on account of the notes, the notes having been given up, in exchange for other paper, he was equally entitled to a deduction on account of the paper received in lieu of them. The defendant professes to have been surprised by this statement, which he says was never before made, though there had previously been two jury trials at which the plaintiff had testified. He makes affidavit that since the trial he has discovered testimony to contradict it, which in the course of the trial he had no opportunity to discover or produce. It is to introduce this testimony that he asks for a new trial. The newly discovered testimony, even if the defendant had had it at the trial, would have shed no direct light upon the material question, whether the notes were received on an account against the defendant to an equal or greater amount, or upon the question whether the plaintiff gave up in exchange for the notes obligations which he held against the defendant to an equal amount; but would have been *Page 112 valuable only as it affected the plaintiff's credit as a witness, by showing that upon a collateral point his testimony was incorrect. The new testimony, however, as exhibited in the affidavits, is not even upon this point a complete contradiction; for though it clearly shows that two of the notes were paid directly to the plaintiff, it only creates a presumption or probability that the other two were paid to him or for his account; and, as to the two notes paid to him, it shows that they were so paid that he might well be dissatisfied or disgusted with the manner of the payment.

Such being the case, ought we to grant a new trial to enable the defendant to use the new testimony? We think not. The case has already been twice fully tried with the same result, and a new trial is seldom granted because of newly discovered testimony which goes merely to a collateral issue, or to the credibility of a witness. Hilliard on New Trials, 875, 885; Warner v. West.Trans. Co. 5 Rob. N.Y. 490, 498; Campbell v. Hyde, 1 D. Chip. 65, 70; Crafts v. Union Mutual Fire Ins. Co. 36 N.H. 44; Sproul v. Fire Ins. Co. 1 Lans. 71.

2. Another ground assigned in the petition is that the verdict was rendered for an amount in excess of the ad damnum in the writ, — the ad damnum being only $10,000, and the verdict being rendered for $15,904.61. No new trial is necessary to remedy this error. It can be remedied by a remission of the excess. To this the plaintiff consents.

3. A third ground for a new trial is that the jury allowed the plaintiff the full amount of certain notes which the plaintiff had compromised and taken up for about fifty per cent. The amount of these notes is $2,800. The excess of the verdict over the ad damnum is much greater than half of this with interest. The error will therefore be corrected by the remission of that excess.

We deny the new trial, the plaintiff, however, being required to remit the excess of the verdict over the ad damnum of the writ.

New trial refused.

Subsequently the defendant asked for permission to reargue this last petition for a new trial. The request was refused and execution issued. *Page 113