Seeveks, Ch. J.
1. EVIDENCE: burden of proof; bank, -There was no evidence showing or tend■ing to show, other than the fact that the defendants are the successors of the Bank of Eed Oak, that any of the funds or property of the bank passed into the hands, or under the control, of the defendants. The jury could not, therefore, find otherwise than they did. This was a necessary fact to be proved by the plaintiff, before he could recover of the defendants for the delinquencies of the bank. Or at least he should in some manner have shown that the defendants were something more than the mere successors of the bank in business, before he could recover, and as we read the record there was no testimony whatever on the subject.
2.__. con_ flict: verdict. But if the facts above indicated had been ever .so clearly proved, still under the numerous decisions of this court the verdict was not so clearly against the evidence as £0 justify us in disturbing it. There was at least some testimony tending to sustain the theory advanced by the defendants, and its weight and credibility was for the jury to determine.
3. PRACTICE: interrogatories to the jury. The plaintiff, after the argument to the jury had- commenced, submitted pertinent and proper interrogatories to be answered by the jury. The defendants’ objection thereto, that-they eame too late, was sustained, and the court refused to submit the same to the jury, “for the reason that the same were offered and asked just before the closing argument.” In this there was no error. Code, Sec.'2808.
4. INSTRUCTIONS: refusal to give. The instructions asked by the plaintiff and refused, abstractly considered, were no doubt correct, and such refusal might have constituted error, but for the fact that the instructions given by the court cover the same ground, and without doubt, because of their applicability to the evidence, aided the jury in coming to a correct conclusion, much more than those refused would or could have done. The instructions fairly present the law of the case, and are not objectionable either in form or spirit. It'occurs to us that the objections urged by counsel are more in the nature of *566objections to the verdict or case as a whole, than to the legal propositions announced.
The testimony of McFatrich is objected to for the reason that it relates solely to things of a private nature between Somes and himself, knowledge of which was not brought home to the plaintiff. The material portion of his evidence was, “when I learned that Somes had guaranteed the payment of this note, I told Moore that the note should not be paid under any circumstances. I demanded back the money from the hank of Red Oak.”
The bank, for the purpose of collecting the note, was the agent of the plaintiff, and it undoubtedly was proper and material to show that the plaintiff through his agent had knowledge that McEatrich repudiated the guarantee, and refused to permit the funds of Somes & Co. to be used in payment of the note.
5. NEW trial: newly discovered evidnece: diligence The newly discovered evidence was material and cannot be said to be cumulative. It is somewhat strange, under the issues, that it never occurred to the plaintiff until after verdict that the evidence of Somes might be material and at least some effort made to obtain it. Due diligence, thought and cai’e would seem to require that much. The otrly excuses offered are that Somes, at the time of the trial, was absent from the State, and that the trial was on the same day the issues were made up. It is not claimed that the plaintiff at the time of the trial, and previous thereto, did not know where Somes was, or if he did not, it is not pretended he made any effort to ascertain his whereabouts, or what could be proved by him.
If the plaintiff was taken by surprise by the answer, or if he was surprised by the testimony, he should in either event have asked for a continuance or possibly dismissed his action, and not taken the chances of an adverse verdict. Ordinary diligence requires at least this. It is not sufficient that there is testimony discovered after the trial, of which the party had no knowledge at the time, but he must have used due diligence to have discovered it. What is diligence will depend on the facts and circumstances. The plaintiff before going into trial *567knew that the question whether the guarantee of the note was binding on Somes & Oo. was contested, and he knew from the allegations in the answer, “ that the indorsement guaranteeing payment of said note was made by J. E. Somes, and signed ‘ J. E. Somes & Oo.,’ against the express orders of EL A. Mc-Eatrich, a member of said firm; and that said indorsement was an act without the scope of the partnership business.” Now, under such circumstances, due diligence, thought and care would certainly have indicated to the plaintiff that Somes of necessity must have known something material. Rut as he made no effort whatever to obtain a continuance, and took his chances and was beaten, he must abide the result.
Affirmed.