29 Neb. 92 | Neb. | 1890
This action was brought on a promissory note as follows :
“$273.63. Ashland, Neb., April 1, 1877.
“ Six months after date I promise to pay to S. P. Decker, or order, $273.63, in Ashland, Neb., with interest at the rate of 12 per cent per annum until paid, together with reasonable attorney’s fees if collected by suit, value received.
“Peter Keiser.”
On the trial of the cause the jury returned a verdict in favor of the defendant in error for the sum of $436.83, and a motion for a new trial having been overruled, judgment was entered on the verdict. The testimony shows that in 1869 or 1871 the plaintiff in error purchased a horse from the defendant in error for the sum of $140, giving his note therefor due in six months with interest, at 12 per cent. When this note became due, a new note for the principal and interest was executed and a number of renewals took place prior to 1877, when the note in suit was executed.
The testimony shows that at each of these renewals the plaintiff in error was not aware that anything in excess of the then lawful rate of interest was added to the note, and
The testimony shows that the plaintiff in error removed to this state in September, 1868, and has resided here ever since, and the jury seem to have considered that the original note was executed in 1869. This fact is material only as tending to prove that more than lawful interest was charged if the original note was executed in 1871.
It is claimed that the plaintiff in error is entitled to a new trial on the ground of newly discovered evidence. This evidence consists of the affidavits of two persons, in effect that the horse was purchased in 1871. The affidavits contain hearsay evidence, a large part of which would not be admissible in evidence, and at the most are cumulative. Where the newly discovered evidence is merely cumulative, to authorize the granting of a new trial thereon it must be of so controlling a character that it would probably change the verdict. (Windham v. Kendall, 7 R. I., 77; Levitsky v. Johnson, 35 Cal., 41; Maxw., Pl. and Prac. [4th Ed.], 447.) The newly discovered evidence lacks the degree of certainty necessary to authorize the granting of a new trial.
There is no material error in the record and the judgment is affirmed.
Judgment affirmed.