1 Morris 398 | Iowa | 1845
Per Curiam,
The only error assigned in this case is that the court below refused to grant a new tria|,upon the affidavit filed in the case. As a general rule, questions in regard to new trials are submitted to the sound discretion of the District Court, and a case of manifest error must be made out to induce the interference of this court. This rule is just and proper, for many of the circumstances which operate upon the court below to cause the granting or denying of a new tria!, are incapable of being presented to us.
The basis of the motion for a new trial, as set forth in the affidavit, is that new evidence has been discovered. But the bill of exceptions shows that the witness by whom the new facts were expected to be proved, was called as a witness below, and on motion of Fanning’s counsel, was rejected as interested. It is a general rule that where the newly discovered evidence is expected to be proved by a witness who was called and examined, no new trial will be granted, it being the duty of the counsel to ascertain the extent of the knowledge of the witness
But the newly discovered evidence itself, is not sufficient to justify this court in granting a new trial. The object of the counsel for the plaintiff in error, was to show that the case was within the statute of frauds. The expected testimony if proved, would be very far from showing sufficient for this purpose.
In the first place, it would not negative the fact that such agreement or some note or memorandum thereof was in writing, and signed by the party sought to be charged, or his lawfully authorized agent, and as it is the business of the excepting party to make out affirmatively a case of error, the defect just stated would seem decisive. But even if the promise had been verbal, the case would not have been within the statute. Had suit been brought by Jones, the defence would be valid. The statute contemplates such a case. But M’Craney sues on a verbal contract by which Fanning promised to pay to Jones a certain sum of money. If such promise was based upon a sufficient consideration, although not in writing, wo think an action would lie by M’Craney for a breach thereof. And although the plaintiff has not declared on such a contract, yet in order to obtain a new trial the party should show a reasonable probability that substantial injustice has been done; not merely that he can prove a technical objection to a recovery.
But although the statute of frauds would have protected the defendant below, for ought that appears, the use and occupation of the ferry was the very consideration of the promise by Fanning to pay M’Craney’s debt to Jones. Could he retain the consideration and still sefuse to perform the contract? The law does not sanction such injustice, much less become an accomplice in its perpetration. The action for use and occupation would in that case have been properly brought.
The judgment below will therefore be affirmed.
