94 Vt. 290 | Vt. | 1920
No claim is made upon the exceptions taken during the trial. The ease presented in this Court rests solely on defendant’s petition for a new trial on the ground of newly discovered evidence (1) relative to the quantity of stretchers made by Clarence E. Pinney and had by the plaintiff, and (2) as to missing page 127 of plaintiff’s account’book, marked Plaintiff’s Ex. 4, and the fraud and deceit practiced by him in keeping that page out, and in testifying that pages 158 and 198 contain a true account of all the dicker between him and Pinney.
The case was brought to recover the balance claimed by plaintiff to be due from defendant on an account covering more than twenty years, and consisting of many items of both debit and credit. At the beginning of the trial, such concessions were made on both sides as resulted in confining the evidence to a very few items, concerning which there was dispute.
The principal contention in the case was, whether the defendant was entitled to credit for the sum of $1,039.12, named in a paper marked Defendant’s Ex. F, reading as follows:
“West Bridgewater, Vt. 190
“F. G-. Spaulding:
“I have looked over with C. E. Pinney and if thare not a mistake thare is credited to you 1,039 12/100.
(Signed) “J. N. Madden.”
The plaintiff admitted giving the paper to Pinney, but denied that it was for the purpose claimed by the defendant. Plaintiff asserted, and his evidence tended to show, that he paid Pinney (in account) for all the stretchers received of him; and that he made the paper at Pinney’s request for him to take to the defendant, as showing the number of stretchers Pinney had made, in settling with the defendant for the stock furnished by him.
Edmund S. Hadley and Lewis Hadley, both of Sherburne, make a joint affidavit in which they state that during the year 1902 they sold to Clarence E. Pinney, and delivered at his mill, thirty cords and sixty-five feet of hardwood stretcher logs other than ash, and have their original book showing this fact; that the first time in recent years they have given this information to any one was on May 6, 1919, when they told Frank W. Spaulding of Bridgewater, who is a son of the defendant. It appearing from defendant’s evidence that in the year 1902, he furnished the logs to Clarence E. Pinney out of which the latter manufactured stretchers, and from the affidavits of Ernest Pinney and Lombard that the defendant paid them, severally, for the logs sold and delivered to Clarence E. Pinney during the three years 1901, 1902, and 1903, and it being nowhere shown that defendant did not, in the same manner, have to do with the Hadley logs delivered at that mill, and further in view of the fact that the defendant’s denial of information that logs were so delivered at Pinney’s mill by Ernest Pinney, by Lombard, and by the Hadleys, is by a single sentence applicable alike to them all, we are not satisfied that he did not have similar knowledge of the logs delivered by the Hadleys as he did of those delivered by the other affiants. In this respect, the three affidavits must be treated alike, as forming no proper basis,'as newly discovered evidence, for a new trial. Rawleigh Co. v. Pierce, Hazen & Huntley, 92 Vt. 44, 102 Atl. 96.
Affiant Colton testifies only as to the number of stretchers a cord of stretcher timber of average quality would produce. Evidence of this nature has a bearing, but no claim is made for it as newly discovered.
As before observed, pages 158 and 198 were in evidence as Plaintiff’s Ex. 4. When so in the case, defendant’s counsel had the same right to examine the book as did the other side, and there is nothing of record showing that all reasonable opportunity, indeed, all the opportunity they desired, was not accorded them. On page 198, in about the middle of the second column, and surrounded by a pencil mark, are written in pencil words, letters, abbreviations, and figures, as follows: “Amt on 127 page cr, F. G. S. I paid Pinney for as 230.00. He had them charged
We think that, by proper cross-examination, all the facts shown by plaintiff’s deposition attached to the petition for a new trial, might have been elicited, and for that reason, if for no other, such facts do not form a proper basis for the granting of a new trial on the ground of newly discovered evidence. McClendon v. McKissack, 143 Ala. 188, 38 South. 1020.
This disposes of all the so-called newly discovered evidence, leaving the petition without essential evidentiary support.
Judgment affirmed. Petition for a neto trial dismissed with costs.