| Kan. | May 15, 1868
By the Court,
In this case the parties litigant were their own best witnesses. Each party swore distinctly and circumstantially to a state of facts denied by the other. The case of the plaintiff below, now defendant in error, rested almost entirely upon his own individual testimony, expressly contradicted, in almost every important particular, by that of the plaintiff in error, and in one or two points by other disinterested witnesses ; as, for instance, by the witness, Cutts, as to the payment of $100 by Klopp to Mm on Jill’s account.
I am exceedingly reluctant to dissent from the learned Chief Justice on a question of evidence, but think that on the trial of this cause in the court below, the court erred in excluding the testimony of John Raiser against the objections of the defendant’s counsel. I think the evidence offered and excluded was relevant and ma
Jill sued Klopp as on quantum meruit, for so much money as he reasonably deserved to have for the work, or so much as his labor was worth. I think Kaiser’s testimony would have tended very strongly to show what such work was worth at the time, by showing what the defendant could have had it done for. It would also have tended to establish the contract alleged by Klopp to have been made, by corroborating Klopp’s testimony. It was legitimate, because there was evidence that the attention of plaintiff below was called to such an offer, at the time of making the alleged contract.
I think, also, that the newly discovered evidence was such as to entitle defendant below to the new trial asked for and refused. That testimony (see Adolph Stockman’s affidavit) seenis to me to answer all the conditions laid down as to such evidence. 3 Graham & Waterman on New Trials, 1021, et seq.
1. It came to the knowledge of defendant (plaintiff in error) after the trial.
2. It was not owing to lack of diligence on the part of plaintiff in error that' the evidence was not discovered before the trial.
3. The' evidence was so material, that it would prob
4. It is not cumulative within the rules, laid down defining cumulative evidence.
I deem it unnecessary to cite authorities except as to the last point; i. e., that the newly discovered evidence is not cumulative.
For a clear definition of cumulative evidence, Waller v. Graves (20 Conn. R., 303); Guizott v. Butts (4 Wend., 579).
The affidavit of Stockman, offered in support of the motion for a new trial, states that Jill admitted tp him (Stockman) in conversation that he was to plaster for the same price per yard that he did the saloon. Jill swore very differently on the trial.
The case seems to be exactly similar to that of Kane v. Barrus (2 Smede & Marshall, 313), cited in Graham & Waterman on new trials, where, in an action on a promissory note against the maker in favor of plaintiff’ s intestate, after verdict for plaintiff defendant produced the affidavit of witness that they had heard the intestate acknowledge the payment of nine hundred dollars on the note, and,- also, his own affidavit showing that the evidence had come to his knowledge since the trial, and that he had used due diligence to discover it. Held that the maker was- entitled to a new trial.
So also in Hardner v. Mitchel (6 Pick., 114), which was an action for a breach of warranty in the sale of oil; the evidence alleged to have been newly discovered was confessions of the plaintiff, and the question was whether it was new or only cumulative? The confession was that the oil was as good as he expected.
The court held this to be a new fact, not before in the