167 Iowa 279 | Iowa | 1914
Plaintiff sold to defendant about $1,550 worth of tile, and sued to recover a balance of $402.64, alleged to have been due on the account. Defendant, by way of answer and counterclaim, alleged, in substance, that under the agreement the tile was to be of good quality and delivered at Newburg in good condition; alleges that many of the tile were broken and were defective; that'he was unable to state the nature of the defect, but says they were rotten, and they crumbled and were broken in ordinary handling; that he paid freight and was otherwise damaged. He asked damages on his counterclaim in the sum of $1,007.19. Plaintiff denied it was to pay freight, and denied liability because of breakage, etc. On the issues raised in the original hearing, a trial was had to a jury, resulting in a verdict and judgment for defendant for $200. This was-on June 15, 1912. Plaintiff filed a motion for new trial, which was overruled June 24, 1912. February 13, 1913, plaintiff .filed its petition for new trial, and the matter is being now reviewed. To the petition a motion for more specific statement was made and sustained in part, then plaintiff amended the petition, and defendant demurred. Plaintiff again amended its petition and attached an affidavit of Houvenagle. as Exhibit A. Defendant again demurred, attaching an affidavit to his demurrer. There appears to have been no ruling on the demurrers. No answer was filed, none being required under section 4095 of the Code. Evidence was introduced by both parties on this hearing, and plaintiff filed still another amendment to the petition to meet the proof.
The procedure was somewhat irregular, and is conceded to be so by one of the parties, but no objection is made as to this. Sixteen pages of the abstract are taken up' in the printing of the pleadings in this application for a new trial. The
It is difficult to treat the questions presented without going somewhat into detail and without some repetition, because it involves the stating of facts in three different ways; that is, to state the substance -of what is set out in the application for a new trial as the alleged newly discovered evidence, and to compare that with the evidence given on the.first trial, and with the testimony of the witness at the present hearing. The substance of the errors relied upon is that the court erred in holding that the perjury of a party to the action is not sufficient ground to justify granting a new trial, and in holding that the evidence was not newly discovered, and that reasonable diligence was not shown.
Appellee’s points for affirmance are substantially that the'evidence is not newly discovered; that plaintiff is simply asking for another opportunity to canvass the same evidence adduced on the original trial; that the so-called newly discovered evidence is cumulative and impeaching, and such as might be met by other and opposite cumulative evidence on the part of defendant; no diligence is shown; that the trial court did not abuse its discretion; and that it does not appear that the alleged newly discovered evidence will change the result.
Though not cited by counsel, we assume that the petition was filed under Code, sections 4094, 4095, or 4092 and 3756. Section 4094 provides that the facts or errors must be set forth in the petition. The allegation is that plaintiff will show these matters by the evidence of Louis Houvenagle and others. The others were not named in the petition. Other witnesses were examined, but we take it plaintiff relied on the evidence of Houvenagle, because this is the matter set forth in the petition.
Paragraphs 1, 2 and 5, just referred to, are as follows:
1. That there was misconduct of prevailing party (the defendant) in this that:
(a) He testified falsely; that the tile crumbled; that three tile crumbled in one place dug down to; that the earth had a boiled appearance, and that this appearance did not obtain because of surface water draining into these low places; that the tile crumbled into five pieces; that the tile was not fit to use; that he discovered this boiled appearance within one week or ten days, later testified he discovered the tile unfit on October 6th, at another time, testified he knew it long before, at another in September; that he had a level properly run; that there was broken tile because of settle in line where ditch was filled; as to the reason given by Houvenagle for refusing to lay tile, that Louis Houvenagle took load of tile out of road; that he saw all tile go in, and that they were good when put in; that Louis Houvenagle did not put in any cracked or broken tile; that he dug in places and found crumbled tile; that tile was laid through a barrel, when he. knew these things so testified were false and untrue, and this was done by the said defendant for the purpose of obtaining a result contrary to right; and plaintiff alleges that the things so testified to were matters material to the issues herein, and that their
(b) That he (said defendant) procured false testimony to be given upon the trial of this cause, and that the false testimony so procured aforesaid was material to the issues.
2. That there was surprise which ordinary prudence could not have guarded against in this: That the defendant testified falsely as above; that he procured his only witness to testify falsely as set out in Exhibit A, hereto attached and by reference made a part hereof.
5. That there is newly discovered evidence material for the plaintiff, which it could not, with reasonable diligence, have discovered and produced at the trial, in this: That the tile were put in at improper grade; that but few tile were broken because of inherent weakness; that most breakage was because of rough handling by defendant and his men; that the broken tile in the ditch were broken by the application of force; that defendant testified falsely upon material things in issue; that defendant’s witness, Louis Hpuvenagle, testified falsely upon material things in issue; that the false testimony of Louis Houvenagle was obtained by virtue of threats and promises of the defendant, and with defendant’s knowledge of its falsity; that the tile in the ditches were good, merchantable tile; that plaintiff exercised due diligence to learn the material facts set out above before the trial, but was unable because of the active fraud of the defendant, the further fact that the information was within his [the defendant’s] breast and the breast of one peculiarly under his control, and further because the res was in foto under his control, being seven feet under the ground and on his farm.
These are the real grounds upon which the new trial is asked.
Other witnesses also testified for both plaintiff and defendant on the same matters. On the original trial the jury was required to weigh the evidence of the different witnesses and to determine which of them were truthful or untruthful. On the main trial Houvenagle testified:
I lived at Newburg;' have laid considerable tile the last two falls, probably 1,300 or 1,400 rods. I hauled and laid tile for the defendant in the fall of 1911. Six hundred and seventy-two large tile were broken in the car which the engine struck at Newburg. The tile was hauled from Newburg on a wagon with hayracks. Ten to fifteen tile to the load on an average were broken in the hauling; they were carefully handled, and the cause was the fault of the tile; they seemed to be checked and cracked, no such tile as the exhibits. Probably twenty-five per cent, or thirty per cent, fell to pieces in handling. I would say the tile were not properly mixed or burned. I laid the tile when the ditch was ready. No broken tile was put in the ditch and covered up. "Water was running in the ditch at that time. After the tile was laid in the ditch I observed running water at the outlet. It was running toward the creek. I was down the last of April at the time of the rain, and I noticed the tile was not running. I went over the whole string of the. one hundred and fifty-eight rods and found that some one had opened the ditch with a spade and had tested it, the tile were broken in little pieces. Five places had been dug down tó, and I found the same condition in each; there seemed to be one or two places where the tile hadn’t crumbled but was broken. There was no water at the outlet of the 48-rod ditch. Q. What was the condition of the tile that you uncovered when you dug down to it in the 48-rod string? A. The tile was broken. It had the appearance of being crumbled. There are about two hundred and forty rods of twelve-inch tile on the Rock Creek farm. There are three hundred and thirty-six or five hundred and thirty-six twelve-inch tile on the surface of the ground at the Rock Creek farm, two hundred and fifty at Newburg and twenty-five at the Newburg farm. I think eight ear loads of twelve-inch tile were delivered to the defendant, or about 8,000. Six hundred and seventy-two of 1,000 were broken when they arrived at
Cross-examination:
When the car was bumped four hundred tile were broken. In hauling tile I often drove one team and led another. There are seven hundred and thirty-five tile on the Bock Creek farm piled up now. Cattle are running in there. In the ditch examined the tile has crumbled, fallen to little pieces, slacked. I have seen seven broken tile in the ditch. Five of them were in the hundred and fifty-eight-rod; they are in five places, just one tile in a place, the other two are in the forty-eight-rod ditch, in two places. One tile in a place was all I ever looked for. My only reason for saying the tile are not good is because they broke in hauling. We filled the ditch by scraping the dirt in with a team. I broke a good many tile, fifteen or twenty every hundred and fifty rods. All of the tile broke that fell off the wagon on the roadside. I didn’t expect them not to break. The sixty-rod ditch had all Grinnell tile. I found water in the hundred and fifty-eight-rod ditch at all the places where we dug.
Mr. B'ooknau did not, at any time prior to the trial of this case in June, or during the trial, ask me to give false testimony in his behalf, and I did not give any testimony as a
It does not appear that the trial court abused its discretion in refusing a new trial, or that a different result would be reached on another trial. The judgment is therefore— Affirmed.