156 Mo. App. 68 | Mo. Ct. App. | 1911
Plaintiff instituted this action before a justice of the peace to recover judgment against defendant Hugunin for debt on contract and to enforce a mechanic’s lien for the amount against a cer
We are confronted with a voluminous abstract, setting out all of the testimony in the ease. From a careful reading of it, it appears that there was an absolute and irreconcilable conflict in the testimony, both as to the correctness of the account and as to the party with whom the contract was made.
Plaintiff asked two declarations of law, both of which the court refused, plaintiff excepting. It gave three at the instance of defendant, plaintiff duly saving exceptions. By one of these, given at the instance of defendant, the court, in substance, declared the law to be that if defendant did not request of or contract with plaintiff for the work and material shown by the evidence to have been furnished by plaintiff, and if the same was contracted for from plaintiff by one Mitchell on his own authority, and furnished by plaintiff to Mitchell under the contract, then plaintiff is not entitled to recover in this case.
This declaration of law goes to the very root of the-case. Without regard to others refused or given, and in-connection with the rulings of the court in the progress of the trial as to the admission and exclusion of evidence, it appears beyond controversy that the court
Before leaving this matter of declarations of law, it is well to say that we see no error in refusing the
The second declaration asked undertook to shift the burden of proof of the fact as to the party with .whom the contract was made from plaintiff to defendant. It would have been error to have given this. Plaintiff had the burthen throughout the whole case to prove, by his evidence, with whom he had made the contract.
In the motion for new trial interposed by plaintiff, the grounds are, first, that the defense raised at the trial of the cause, wherein defendant set up a claim that Mr. Miller and not he, defendant, was contractor for the erection of the building, was a complete surprise to plaintiff, plaintiff having had no opportunity to notice or prepare to meet such defense; second, that since the trial of the cause, plaintiff had discovered new evidence, which is so material to the issues in this case, that had it been produced at the trial thereof, the result might have been the other way; the new evidence consisting of the tesimony of an experienced expert in handwriting, who would testify, upon- a new trial, that he had made a thorough and careful examination of a certain receipt offered in evidence, signed by plaintiff, and that that witness could testify that, in his opinion, certain words in it were written after the receipt had been given and long after it had been signed by plaintiff; that that witness would further, by his testimony, state
As to the first element of alleged surprise, it is. untenable. Plaintiff should have gone into court prepared to prove with whom he had made the contract.. That was the burthen that was on him throughout the-whole trial.
As to the second, unless in the nature of impeachment, it was merely cumulative. The matter of the-words in the receipt referred to having been there before-signature was gone over and testified to by the parties-Witnesses testified they were in the receipt when plaintiff signed it. Plaintiff and perhaps others testified they were not. The testimony of this expert would have been merely cumulative of plaintiff’s own testimony— at most contradictory of the testimony given on behalf of defendant; possibly in the nature of impeachment, of defendant and his witnesses. New trials are not granted for the purpose of introducing either cumulative, impeaching or merely contradictory testimony. Over and above all this, plaintiff’s action in claiming-surprise, that action taken after verdict, came too late.. The receipt containing the disputed Avords was introduced at the very beginning of the trial; on the first, day. The trial lasted through two days. Plaintiff had ample time to have procured witnesses, expert or otherwise, if he so desired, or to have put in more contradictory evidence, not only as to this receipt but as to the-fact of the party with whom he had made the contractile asked no withdrawal of the case, no postponement,, took no nonsuit. On the contrary he took the chances of a verdict in his favor. It is too late, doing that, to. attempt to come in, that verdict being adverse, and attempt to cure his own negligence.
In Savoni et al. v. Brashear et al., 46 Mo. 345, •Judge Bliss, considering this identical question of a motion for new trial, assigning as one of the grounds, surprise at the testimony of witnesses, says that while
It is true that in the case at bar a nonsuit would not have left plaintiff in as good a position as he was at the outset because the time for perfecting a lien against a new party had expired; but undoubtedly, on a proper presentation of the matter to the court before a final submission of the cause, plaintiff would have been allowed to withdraw the case from further submission and been granted time to produce the evidence that he claimed was so material. Plaintiff did not ask to do this, but submitted, even to the extent of introducing rebutting evidence in the attempt to support his claim, all his case, even submitting declarations of law to the
Furthermore, in his motion for a new trial, covering' this matter of surprise and newly discovered evidence, plaintiff has not brought himself within the rules announced by our Supreme Court. Even in a state case, where the defendant was on trial for murder,—where human life was in jeopardy, the case of State v. Church, 199 Mo. 605, 1. c. 639, 98 S. W. 16, our Supreme Court has said: “Among the things necessary for a defendant to show’ in order to entitle him to a new trial upon the ground of newly-discovered evidence, is that it is so material that it would probably produce a different, result if the new trial were granted; and that it is not cumulative only,” citing many cases in support of this rule.
In a civil case, that of Wabash Railroad Company v. Mirrielees, 182 Mo. 126, 1. c. 145, 81 S. W. 437, our Supreme Court has said that where a motion for new trial is based on newly discovered evidence, it must show that it was not owing to any want of diligence that it was not discovered in time to be used on the trial and is-not merely cumulative or intended to impeach other evidence.
In an early case, State v. McLaughlin, 27 Mo. 111, 1. c. 112, quoting from Berry v. State of Georgia, 10 Ga. 527, our Supreme Court states the rule to be, that the party seeking a new trial on the ground of newly discovered evidence must show six things in order to have that motion sustained: first, that the evidence has come-to his knowledge since the trial; second, that it was not owing to want of due diligence that it did not come-sooner; third, that it is so material that it would probably produce a different result if the new trial were-granted; fourth, that it is not cumulative only; fifth, that the affidavit of the witness himself should be produced or its absence accounted for; and sixth, that the-
The affidavit for. the new trial, which we have set. out in substance, falls far short of complying with several of these requirements, every one of which our Supreme-Court, from the time of State v. McLaughlin, supra, .determined in 1858, down to this day, has insisted on as indispensably requisite to the granting of. the motion.
The judgment of the circuit court must be and it is affirmed.