36 F. 880 | U.S. Circuit Court for the District of Louisiana | 1888
On the original pleadings, in this case the plaintiff was entitled to judgment. The answer admits the contract sued on, admits plaintiff’s compliance with all the specified stipulations of the contract, and rests the. defense upon a claimed construction, not justified by the
On the pleadings, as amended, setting up a subsequent parol contract on the part of the plaintiff to guaranty the quality oí' the water, the case seems to have been submitted to the jury on the evidence, and there is no substantial complaint that the finding was not in accordance with the law and the evidence.
The affidavit of newly-discovered evidence is not sufficient to warrant a new trial. It does not show the diligence used. The evidence as set forth is cumulative, and if true and in the case it ought not to affect the verdict. That the plaintiff as well as the defendant hoped to get good water may be conceded, but that he contracted with the defendant to guaranty the quality of the water cannot be proved from conversations, however explicit, after the contract between two of the plaintiff’s agents as to the hopes, expectations, undertakings, and agreements to get good water, as long as the matter concededly did not take the form of a contract with a consideration. According to what information I have as to the evidence on the trial, I am well satisfied that what defense there is in the case wholly arises under the construction proper to be given to the written contract sued on. The construction given by the trial judge in his charge to the jury was correct, and the charge requested by the defendant was properly refused. The verdict was in accordance with the chargo
Publication delayed by inability to obtain copy of opinion at time of rendition.