26 Colo. App. 59 | Colo. Ct. App. | 1914
Mathieson, the defendant in error, as plaintiff below, brought his action upon a joint and several promissory note given to him by the Psychic Science Company, and the plaintiff in error, Rose A. Agnew, the note representing money borrowed from Mathieson. The note sued, upon was dated April 29th, 1909, and was made to mature two months later. On or about the date of the maturity of the note referred to,
1. Under the facts stated, there is but one serious question for our consideration, and that is, whether the plaintiff, Mathieson, by delivering the note to his wife for presentation to Cashmere, as the head of the Psychic Science Company, was grossly negligent, in that he put it within the power of Cashmere to- perpetrate a fraud to the injury of Agnew. We are not strongly impressed with this argument, which seems to be based largely upon the theory that Cashmere possessed some sort of psychic power over both Mrs. Agnew and Mrs. Mathieson, who- appear to have been devotees of his Cult. At the* time Mrs. Agnew signed the note, she was actively and officially connected with the Psychic Science Company, being
2. It is urged on behalf of defendant that the trial court erred in overruling her motion for a new trial, which was based largely upon a claim of newly discovered evidence, and upon surprise. Defendant insists that she,
“Had no' means of knowing, either from the pleadings or otherwise, that plaintiff could or would claim that said second note of $1,350 had been procured or delivered by fraud, or otherwise, and that defendant had no opportunity to meet such testimony, having had no prior intimation that such testimony could or would be produced.”
We discover no merit in this contention, first, because no objection, based upon surprise, was made to the introduction of testimony on the trial.
“Objection on the ground of surprise is waived unless the party surprised calls the court’s attention to the matter at the time, and asks for some proper relief.” — Outcalt v. Johnson, 9 Colo. App. 519.
The authorities on' this point are numerous and harmonious. Second, we can not agree with the contention made
“Plaintiff further states that there now appears written across the face of said note the following, to-wit: ‘Paid by new note for two months of $1,350.00,’ and plaintiff alleges that said writing' has been placed there since the execution and delivery to him of said note. That the same has been placed thereon without his knowledge, and without his consent or authority. Plaintiff further alleges that said note has not been paid by the issuance to him of a note for the sum of $1,350, or at all, save and exc'ept the payment of the sum of $150 as aforesaid, and that said note is in full force and effect according to the tenor as above set forth.”
By the complaint itself, therefore, it is clear that the defendant was fully advised of all the facts which would make! the deposition of Cashmere (whose affidavit she produced on her motion for new trial) necessary, and being in the penitentiary, it can hardly be said that Cashmere could not have been found before the trial and his deposition taken. Third, the infamous character of Cashmere’s conduct, as disclosed by the evidence in this case, would hardly justify the setting aside of a judgment and the granting of a new trial for the purpose of taking his deposition.
Judgment Affirmed.