Sioux Falls Stock Yards Co. v. Ash, 177 N.W. 761

Sioux Falls Stock Yards Co. v. Ash

177 N.W. 761 | S.D. | 1920

Lead Opinion

McCOY, P. J.

Action to recover for keeping and feeding stock of defendant at the stockyards of plaintiff at Sioux Falls. Trial iby the court and findings and judgment for plaintiff, from ■which defendant appeals.

[1] Appellant moved for .new trial on the ground, among others, of newly discovered evidence. The overruling of such motion is assigned as error. Defendant, the appellant, admitted that his stock were kept and fed at respondent’s stockyards, at said time and place, but alleged they were so kept and fed pursuant to an express agreement between appellant and respondent’s agent *84that said stock should be so kept and fed without expense to appellant. The only witnesses Who testified on the trial as to said contract were appellant and said agent of respondent. There was a direct conflict in their testimony. One O. was present at the time of the making of said contract. O. was a traveling man whose duties called 'him to various parts of the United States. Appellant, as shown by tbe record, used due and timely 'diligence to discover the whereabouts of O., that his testimony might be obtained at the trial, but was unable to do so. After trial appellant discovered the Whereabouts of O., and secured and presented his affidavit on the motion for new trial. In affidavit O. states that upon a new trial he would testify that he was present and heard the conversation that constituted the contract between appellant and respondent’s said agent, and that the substance of said conversation was that appellant should keep and feed his said stock in said stockyards at said time free of storage and feed expenses. It is urged by respondent that said newly discovered evidence is cumulative, and furnishes no ground for new trial. 'We are of the opinion that the circumstances of this case are within the exception to the general rule relating to cumulative evidence, where the evidence on the trial was only that of interested parties. Sluman v. Dolan, 24 S. D. 32, 123 N. W. 72.

[2] It is also urged that said newly discovered evidence is immaterial on the ground that said agent of respondent was not authorized to enter into or bind respondent by said contract. It appears that said agent was in the general management of respondent’s said business at Sioux Falls at said time, and was vice-principal of respondent, and had at least ostensible authority to make such a contract.

The judgment and order appealed from are reversed, and the cause remanded for new trial.

Dissenting Opinion

WHITING, J.

(dissenting.) The record herein does not, to my mind, present a case of “newly discovered evidence” relating to what took place at the time of the making of the alleged contract, but a case where a known witness was not present at the trial and no motion for continuance was presented. This fact brings this case directly under the rulings of this court in State v. Barnes, 26 S. D. 622, 129 N. W. 116, and State v Gregory, 31 S. D. 425, 141 N. W. 365.