92 Iowa 757 | Iowa | 1894
I. It is not denied that the plaintiff was the owner of some shoes, fixtures, furniture, and tools which were stored on the upper floor of a building occupied by the defendant as a tenant. On the seventh day of April, 1891, the said property was consumed by fire. The matter of dispute between the parties is whether the defendant should pay the plaintiff for the loss. It appears that the plaintiff formerly carried on the boot and shoe business in the building, and that he occupied the same under a lease from Biederbeck & Miller, the owners. By an arrangement with one Vogelmuth, the lease was surrendered, and the owners made a lease to Vogelmuth, who occupied the building from about January 1, 1891. Afterward the lease was changed, and the defendant became the tenant of Biederdeek & Miller. When the plaintiff surrendered the possession of the building, there was an arrangement made with Vogelmuth, by which the old stock of shoes was deposited on the third floor, where they remained until they were destroyed by fire. The conflict in the claims of the respective parties arises upon the arrangement by which the goods were left in store, and the subsequent acts of the parties. Some time before the fire the plaintiff commenced to remove the goods, and was prevented from doing so by the defendant, on the ground that rent was due for the storage of the goods. The plaintiff claimed that no rent was due, for the reason that it was agreed that the rent should be set off against an account which plaintiff held against the defendant for some curtains, window shades, etc., which he sold to the defendant when the possession of the store was given by the plaintiff. We will not set out the evidence nor refer to it further than to say that it was in conflict as to the terms upon which the goods were left in store. Indeed, there was little else than conflict on this question. The two principal parties to the
II. One ground of the motion for a new trial was certain alleged newly discovered evidence, founded upon an affidavit of which the following is a copy: “I, F. H. Miller, being duly sworn, on oath say that about eight or nine days before the fire which consumed the buildings known as numbers 111 and 113 West Second street, Davenport, Iowa, I had a conversation with E. M. Murray as follows: There was a truck standing in front of Max Weber’s store, number 111 West Second street, and Mr. Murray, with some assistants, was putting some shoe boxes on there. I was standing in front of the door of the adjoining building, occupied by Biederbeck So Miller, when Mr. Murray said to me: ‘Just look at that. Those darned fellows won’t let me take the goods away.’ I asked him what the matter was, and he said that they demanded more rent than he owed them. I told him that Mr. Weber was away, and asked him why he didn’t pay the rent under protest, and take a receipt, and that Mr. Weber would doubtless straighten it out when he returned. He said the reason that he did not pay the rent was because he didn’t have the money. He toldme the amount which they demanded, which I recollect was nominal,— twenty dollars, or thirty dollars, I believe. He said that he had sold them some goods; that there was some settees that they didn’t want to pay for; and that they demanded more money than he owed them for the rent.” The defendant filed his own affidavit in support of the motion, in which he stated that he discovered that Miller would testify as stated in his affidavit after the cause was finally submitted to the jury, and that he had no reason to suspect the existence of said evidence at the time of the trial of the cause. Miller was examined as a witness on the trial, but he was not called for the purpose of testifying to the terms of the agreement under which the goods were left in store. He was one of the members of the firm of Biederbeck So Miller, the owners of the building, and was examined as to the facts attending the execution of the leases for the premises. It is claimed that the alleged newly discovered evidence is incompetent; that it is impeaching, and cumulative; and that there is no showing of diligence to discover the alleged new evidence, nor that it could be produced on a new trial. There is no question, in our minds, as to the competency of the evidence. E. M. Murray was not a party to the record in the ease, but he appears to have had full control of all the business of the plaintiff in connection with the property. He gave up the lease; he made whatever contract was entered into with reference to the storage of the goods; and he was the principal witness for the plaintiff on every material question in the ease. The proposed evidence of Miller would contradict him in a most material respect, and would tend to corroborate the evidence in behalf of defendant. It is not cumulative evidence, because it is not evidence of the same kind to the same point. If a witness had
