79 So. 45 | Ala. | 1918
Appellant rests her appeal on the failure of the court to grant her motion for a new trial on the ground of newly discovered evidence, and the failure to give at her request the affirmative charge.
The generally accepted rules, obtaining in many jurisdictions, as to the granting of a new trial on the ground of newly discovered evidence, are: (1) The newly discovered evidence must be such as could not, with reasonable diligence, have been discovered in time to be produced at the trial; (2) it must be such as to render probable a different result on the retrial of the case.
To these requirements, and as corollaries thereto, the courts have added certain others: (a) That the newly discovered evidence must be material and competent to the issue of fact originally tried; (b) that it must be not merely impeaching evidence; (c) that it must not be merely cumulative.
Regarding this first requirement, our court has declared that the evidence must have been discovered since the original trial (Baker v. Boon,
It is required, therefore, that the motion for a new trial on the ground of newly discovered evidence must negative fault on the part of the movent in the failure to discover, before the trial, the evidence on which the motion is based. Lowery v. State,
The requirement that the newly discovered evidence must be such as to render a different result probable on the retrial of the case was recognized by this court in Beadle v. Graham's Adm'r,
Of the corollaries or requirements added by the courts generally to the two fundamental rules above stated, our court has declared: (a) The newly discovered evidence must be material and competent on the retrial of the issue presented on the original *615
trial. Alabama Midland Ry. Co. v. Johnson,
Whether the "cumulative evidence" is additional evidence of the same kind and to the same point as that given on the original trial, or is distinct and independent evidence of a different character, tending to establish the same ground of claim or defense, was carefully considered in Layman v. Minneapolis St. Ry. Co.,
When movent's application for a new trial is tried by the foregoing test, it is shown to have been sufficient, and it should have impressed the trial court with the necessity for granting a new trial on the ground of newly discovered evidence. It is clear that since the trial, and not by reason of her belated diligence, but by reason of "accident, voluntary disclosures, or other fortuitous circumstances, after all diligence on her part had been exhausted before the trial," such evidence came to her knowledge or to that of her husband, who was assisting in the defense of her suit. K. C., M. B. R. R. Co. v. Phillips, supra (
It was competent and material testimony, presented to the court in support of the motion for a new trial as newly discovered evidence, *616 that Wm. H. Harris, a salesman of plaintiff's knew of no such denial of credit to Fries by plaintiff's manager, and that Mr. Griswold, as bookkeeper of the plaintiff, made the ledger entry, A-319, referred to by the witness, and that said Griswold would swear that he did not write the name of Mrs. R. H. Fries on said ledger as it appears on the margin thereof, and did not know when it was so written. It was further competent to show that said bookkeeper did not know of the private business custom testified to by witness Heins as obtaining in the keeping of the plaintiff's books of the Birmingham branch; that no such custom did obtain or was followed by him as such bookkeeper, but that he opened an account on plaintiff's books in the name of any person purchasing on credit, with an appropriate number on the ledger, and that he continued such account in such name and number as to all subsequent purchases made by such person; and that where members of the same family became purchasers they had different accounts and numbers, just as other purchasers buying on credit in said business, the name of each such purchaser being placed at the top of the page of his account on plaintiff's ledger. While the motion for a new trial was not, by its terms, rested on the affidavit of the former bookkeeper, Griswold, but was on that of Wm. H. Harris as to the denial of credit vel non to Fries, yet the motion was supported by Griswold's affidavit, and submission was had on the motion supported by the several affidavits of R. H. Fries, Wm. H. Harris, and E. P. Griswold and the exhibits thereto.
The motion for a new trial was overruled by the trial court, and this appeal was taken from the judgment or order overruling the motion. When the newly discovered evidence thus presented in support of the motion is considered in connection with plaintiff's testimony as to its private business custom as to credit and with the account exhibited on the leaf of its loose leaf ledger, the original of which was duly certified to this court, we are impressed with the necessity of resubmission of the full facts to another jury for trial. There was no objection to the introduction in evidence under section 4003 of the Code, of the original leaf containing the Fries account from plaintiff's loose leaf ledger. Shepherd v. Butcher Tool
Hardware Co.,
The testimony to the fact that the goods were delivered at the premises of Mrs. Fries and were used in the improvement of her property was of evidential value as tending to aid the jury in determining to whom credit was given. If the material, by express contract, was delivered to R. H. Fries, and on his credit solely, and upon a contract made with him alone, his wife was not bound by the contract notwithstanding the material went into the improvement of her property. "The contract [to bind the wife] must be either originally that of the wife, through herself, or her authorized agent, or else the husband, or other agent, must assume to contract for her and in her own behalf, and such contract be subsequently ratified by her, with full notice or knowledge of its nature. In the absence of a contract [express or implied] of this character, no lien will attach to her property." Wadsworth v. Hodge,
If there was no such contract in this case, no liability was assumed by appellant, and none attached, for which she may be subjected in this suit; for if by express contract credit was given solely to the husband he alone is bound, although it may appear that the wife knew that the building or improvements were in process of erection on her land, and said nothing, or that she and other members of the family afterwards occupied the building as a dwelling. Wadsworth v. Hodge, supra; Wilson v. Andalusia Mfg. Co.,
The evidence contained in the completed record, and especially as detailed by the witness Hall, to the effect that the paint was selected by and sold to defendant and charged to her, made a jury question. Amerson v. Corona Coal Iron Co.,
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.