46 Mo. 345 | Mo. | 1870
delivered the opinion of the court.
The plaintiffs brought suit upon two promissory notes executed by one Sterne and indorsed to them, and defendants set up payment and satisfaction to said Sterne after the maturity of the notes. The answer ivas not denied, and plaintiffs offered testi
There.are circumstances tending to'throw suspicion upon the relations of Sterne and the plaintiff that should weigh with the tribunal passing upon' the facts; but wre have only to consider whether, under the settled rules of law, the motion for a new trial should have been granted. We are inclined to think that the plaintiffs might have been properly taken by surprise at this testimony. There wras nothing in the pleadings to lead them to suppose it would be offered. They could not be expected to be prepared for it, and, if they had no other remedy, a new trial should have been granted. But they were not thus remediless, for a nonsuit might have been suffered without prejudice to a new suit. In 3 Graham & Waterman, 968, the rule is thus stated: “ A plaintiff, after a verdict against him, can have no claim to a new trial on account of his having been surprised by any evidence of the defendant. If the plaintiff finds himself unprepared to meet the defendant’s evidence, he always has it in his power to suffer a nonsuit, w7hich will leave him at liberty to sue again 'for the same cause of action. It would be giving the plaintiff too great an advantage to permit him to take the chance of a verdict, and, when it is lost, to relieve him from the verdict and give him a chance with another jury, merely because the evidence against his claim was stronger on the first trial than he expected it would be ”
The judgment is affirmed.
