37 Iowa 224 | Iowa | 1873
The evidence shows that E. G-. Sleight had an elevator near the railroad depot in Marshalltown: that in the fall of 1872 he was operating the same; that he bought and shipped wheat, and also received the same in store; that plaintiff delivered to the defendant, at his elevator, from time to time in the month of October, 1872, various quantities of wheat, in all about 600 bushels. The testimony is conflicting on the fact, whether the wheat was sold to Sleight, or merely stored with him. The jury found specially that the wheat had been stored. Without inquiring whether this finding is sustained by the evidence, or whether there was error in some of the court’s instructions, we are clear that there was error in the refusal of the court to grant a new trial on the application of the defendant, based upon newly-discovered evidence, in support of which he filed the following affidavits:
State oe Iowa, ) Marshall County, j
ss' ‘
I, H. P. Williams, being duly sworn, on my oath say that I am the defendant named in the foregoing motion; that before the trial of this cause I endeavored to ascertain the facts involved in the cause named at the head of said motion; that I was informed and believed the truth to be and still believe the truth to be that J. W. Hambel, plaintiff, made all the contract he had with defendant, Sleight, in regard to the wheat in controversy, with J. <1. Welsh, Sleight’s buyer and weigher, which was a contract of sale and not for. storage; that I was informed that said Hambel delivered said wheat when E. Gh
H. E. Williams.
Duly sworn to.
I, E. G. Sleight, on oath, say that I never saw J. W. Hambel from the time he first commenced putting his wheat in my elevator that he claims by his attachment now pending in the circuit court of Iowa for Marshall county, until after he had taken the wheat out of said elevator now held by him under the writ in said case. I never had during said time any conversation with him in T. Brown’s office. I never told him he might have his wheat if I had any way to weigh it out; during all the time referred to I was in Chicago, 111., except about two days, and that was after his wheat was. bought by my
E. Gf. Sleight.
Duly sworn to.
I, Geo. Glick, on oath, say that about the 19th, 20th, or 21st of October, 1872, J. W. Hambel came to me and asked what I thought of E. G. Sleight; if I thought he would fail; I told him he was going to bust up. Hambel says I have 500 to 600 bushels of wheat down there; what shall I do ? I told him to get the money for it as soon as the Lord would let him, or the wheat. He saw me in a short time again, and said they had promised him the money in the afternoon. In the afternoon I saw him again and he said Sleight had not got home and he had not got his money. I told him to get the money or the wheat, and lose no time, for Sleight had gone up. During all of said conversation he never said any thing about having stored his wheat with Sleight, nor of getting his wheat again, except what I told him to do. I told E. O. Nice the above facts in substance, March 2d, 1878, and before that time had told no one that I knew any thing about the matter.
Geo. Glick.
These affidavits, with the pleadings in the case, show that the newly-discovered evidence is material; they also show that the defendant did not know of this evidence before the trial; that he could not, by the use of reasonable diligence, have discovered it sooner, and while the evidence is in some degree cumulative, yet it is not merely or exclusively so.
Reversed.