79 Neb. 788 | Neb. | 1907
This is the third time this case has been before this court for review. In the last opinion, written, by Mr. Commissioner Albert (76 Neb. 242), nearly all of the questions Avhich are noAV presented in the brief of the appellant were considered and determined. The case has again been submitted to a jury upon the issue whether the gravel furnished and to be furnished Avas in fact suitable in the judgment of the defendant’s superintendent for ballasting defendant’s roadbed. The evidence at this trial Avas substantially the same as at the former trials. The former opinions of this court, wherein it is held that the petition stated a cause of action, -that the contract was an entire contract for 50,000 yards of gravel, that the letters of the defendant’s officials were competent evidence, that the gravel taken from the Union Pacific pit Avas proper to be supplied under the contract, and that interest is recoA^erable from the date of the expiration of the contract, settled the laAv of the case, and we see no reason for departing from the conclusions then arrived at.
The main point in controversy at this time is Avhether or not the amoxint of damages aAvarded to the plaintiff by the jury is Avarranted by the evidence, and whether there was such surprise to the defendant at the trial, and discovery of new evidence since the trial, as rendered it error upon the part of the trial'court to refuse to set aside the verdict and grant a new trial. Since the amount of the plaintiff’s damages Avas based upon the loss of profits which he had sustained by reason of the refusal of the defendant to accept the gravel purchased, it was incumbent upon him to prove the actual cost to him of the graArel loaded upon tbe cars according to contract. He
After the verdict, and before a hearing upon the motion for a neAV trial, the defendant procured the affidavit of one A1 Brainard, Avho appears to be the same individual with Avhom the plaintiff testified he had an agreement to load the gravel for 20 cents. The affidavit is to the effect that Brainard had never had any agreement with Parkins to load gravel for 20 cents a cubic yard, and that from his experience in work of that kind he would testify that the digging, hauling and loading of the gravel was worth about 47 cents a cubic yard. Many grounds Avere assigned in the motion for a new trial, but among those most insisted upon were that the defendant was surprised by the evidence of Parkins as to the contract with Brainard to load the gravel for 20 cents, and on account of neAvly discovered evidence, being that of Brainard that he had no such agreement with Parkins, and that the loading of the gravel would in fact cost a much greater sum. The motion for a new trial was overruled by the court. Most of the grounds assigned therein were disposed of when this case was here before, but the assignment of error for overruling the motion upon the grounds of surprise and newly discovered evidence remains to be considered.
The verdict of the jury is evidently not based upon the testimony of Parkins that he could load the gravel for 20 cents a cubic yard, or that he had an arrangement whereby it was to be loaded for that price, for they fixed the cost at a sum greater by one-half. No surprise at. the testimony of Parkins that the gravel could be loaded for 20 cents a cubic yard could be claimed by the defendant, since at former trials his testimony had been to the same effect, but it is urged that, since he had never testified to a contract with Brainard, the defendant was surprised
We are further of the opinion that a new trial should not be granted upon the ground of newly discovered evidence. The defendant had ample notice at former trials of what Parkins’ testimony would be as to the cost of loading the gravel. At this trial it introduced the testimony of several witnesses upon this point, and the additional evidence of Brainard as to the cost of loading the gravel would merely be cumulative. We do not think it cumulative to such a degree or of such importance that its production would be apt to change the result.
The verdict seems large, but, when the amount of interest allowed under the instructions of the court is deducted, it leaves the recovery for loss of profits, as we have seen, at less than 15 cents a cubic yard, and this, under the law as formerly settled in this case and the evidence adduced, seems to be as fair an estimate as a jury is
For these reasons, the judgment of the district court is
Affirmed.