123 A. 28 | Conn. | 1923
The grounds upon which the plaintiff seeks relief are three: first, a fraudulent and champertous agreement between Weinberg and the defendant in connection with the beginning of the action; second, untrue and deceptive representations by defendant with regard to the issues that would be raised on the trial; and third, newly-discovered evidence upon the issues which were actually litigated.
The action could probably have been maintained, upon proper facts alleged, so far as the two grounds mentioned first are concerned, in an equitable action independent of statute; but could also be brought, as *110 has in this case been done, by virtue of the statute, General Statutes, § 5850, which provides for several grounds of action, among them the discovery of new evidence and "for other reasonable cause, according to the usual rules in such cases." By our practice, the clause last quoted has been employed to state any cause, legal or equitable, seeking a new trial for reasons other than those specifically mentioned in the statute.
The plaintiff alleges a champertous contract between the defendant and Weinberg regarding the prosecution of the original action. It does not appear that the question was in any way raised in the trial of that action, and it is not apparent that plaintiff could make any use of this claim upon a new trial, either by way of defense or cross-complaint. Champerty is not a defense to the obligation sued upon, since it is the champertous contract and not the right of action, which is voidable at common law. Bridgeport Bank v. New York N. H.R. Co.,
We may add that it is not alleged in the complaint that Weinberg gave any false and fraudulent testimony, or that in fact he gave any testimony at all. And further, the complaint does not contain allegations of fact showing that in any way plaintiff was legally injured by the connection of Weinberg with the litigation, other than that he rendered assistance to the defendant in procuring counsel, which we have seen is no defense to the action.
Regarding plaintiff's second point, that he was fraudulently deceived by the misrepresentations emanating from defendant previous to the trial, and hence prepared *111 his case for trial mainly upon the issue of agency, it appears from the complaint that Arthur L. Puklin, an agent of the defendant, told plaintiff's attorney that defendant had delivered the check to Matthew Perry believing him to be the agent of Nathan Perry, and that upon the trial the M. M. Puklin Company would claim that the check was delivered to Matthew Perry as such agent. That when, upon the trial, Morris Puklin testified that the check was delivered by him personally to Nathan Perry, plaintiff was surprised, and was unable properly to disprove this evidence, which was untrue and perjured.
The situation above outlined does not entitle the plaintiff to relief. Upon this point the trial court so held upon demurrer. The conversation prior to the trial was not between the attorneys for the respective parties, but between Arthur L. Puklin and plaintiff's attorney. We are not told the occasion of it, nor any of the surrounding circumstances, but from what does appear in the complaint, the plaintiff's attorney was clearly not justified in neglecting a vital issue of the case in his preparation. It would have presented a somewhat different aspect if the conversation had been between the attorneys for the respective parties, but even then it would have been the part of prudence to have had a written stipulation as to the fact involved, or at least to have had the same noted on the record at the outset of the trial. If the testimony of Morris Puklin came to plaintiff's attorney as a surprise to the extent now claimed, it was open to him, and was his duty, to have asked for a continuance in order to obtain further evidence. This he did not do, but rather took his chances of a judgment against him which the trial of the case might develop. Such a continuance might in the discretion of the court have been granted, but, if not granted, the plaintiff would have been in a much *112 more favorable position in the present action. The plaintiff exhibited neither such diligence in the preparation nor in the trial of his case in the original suit, as to justify the trial court in granting a new trial on the ground of surprise. Such contrary evidence as the plaintiff has succeeded in discovering was evidently not far to seek, as the verdict in the original action was rendered February 8th, 1923, and the present action brought March 5th, 1923. So far as appears from the complaint, the sole vital fact is that Morris Puklin testified contrary to what plaintiff's attorney was led to believe would be the case from Arthur L. Puklin's remarks. The demurrer does not admit anything more than the existence of the testimony so far as set out, and defendant is not thereby concluded by the characterization of the testimony as perjured. It was evidently believed by the jury and considered as true in the rendition of its verdict.
Passing to the consideration of the third ground for asking a new trial based on an allegation of newly-discovered evidence, we have to note that the complaint, in an action seeking relief for this reason, should allege and set forth the evidence adduced at the trial of the cause, and also the claimed newly-discovered evidence. Instead of this, as regards the first requirement, we have merely an allegation that the delivery of the check was the determining question in the case, and that Morris Puklin swore that he drew and delivered in person the check to Nathan Perry on behalf of his company, as a deposit on account of sugar to be purchased, and that Nathan Perry denied that he had received this check. Nothing appears in the way of an exhibit to show the actual terms of the check and how it was endorsed, nor is any testimony quoted to show that it was lost and oral evidence given of its contents. We are led to infer from the statement contained in *113 the allegation of the newly-discovered evidence, that the check was drawn to the order of Nathan Perry by mistake and given to Matthew Perry, but the facts regarding this transaction are not given in the allegations of the evidence produced. Apparently, regarding the evidence in general, we have not in this complaint the actual testimony of any witness as given, except the stipulated testimony of Matthew Perry. Regarding the testimony of Nathan Perry and the opposing testimony of Morris Puklin, we have only a statement of one point on which they disagreed, and evidently not a word of it given literally as testified to. Such a setting forth of the testimony is not a compliance with our practice, which requires the actual extended testimony of the witnesses for each party to be given. We have not the pleadings in the original case nor any such recital of the issues therein raised as to make plain the relation of the testimony given to such issues. Clearly the trial court had not before it, and this court has not before it, the case in such form as it should have been presented. The stipulated testimony of Matthew Perry says that he received a check of $500 from defendant which he believed was made payable to him, and that he endorsed it and received the money which he put to his own use. It is highly improbable, with this memorandum of testimony before counsel in the trial of the case, that nothing appeared in extenso in the testimony of Morris Puklin or Nathan Perry relating to their understanding or recollection of the facts surrounding the drawing and delivery of the check, and the presence of Nathan Perry and Matthew Perry at the time, or anything asked or offered in the way of testimony as to the form and content of the check, and its endorsements.
Even if we assume, as claimed by the plaintiff, that his allegation that the delivery of the check was the *114
determining question in the action was admitted by the demurrer, we are still left in this position, that several items of claimed newly-discovered evidence are set forth in the complaint as contradicting the evidence produced at the trial or weakening its effect, while we are left in the dark as to the detail of that evidence and as to some evidential matters which were undoubtedly a part of the defendant's case in the original action. This latter must have contained, if given in full, matters of place and date, and probably contained other details. The trial court, in passing upon the question of granting a new trial, was not furnished with the apparatus required by our practice, which is outlined in the Revision of Swift's Digest, Vol. 1, [787], and elaborated in the opinion in Gannon v. State,
There is no error.
In this opinion the other judges concurred.
