160 Iowa 111 | Iowa | 1913
Plaintiff, in his petition, alleges that in 1881 he and the defendant made a verbal agreement, whereby they became partners in the purchase and sale of cattle, hogs, and other live stock; that the business was conducted under the name of Smith Bros.; that later they operated a grain elevator together, and purchased stock in a bank, of which plaintiff was elected cashier, and that plaintiff’s salary as such for thirteen and one-half years was placed in Smith Bros.’ account; that plaintiff received rent from certain of his land, which was placed in Smith Bros.’ account, but he alleges that defendant had no interest therein; that plaintiff and defendant jointly purchased certain land, which was
Defendant files an answer and cross-bill admitting the formation of a partnership; alleges that the elevator was partnership property and a partnership business; admits certain other allegations of plaintiff, and by way of cross-bill says that plaintiff and defendant became partners, that the partnership was formed for the purpose of engaging in the purchase and sale of cattle, hogs, and other live stock, and for the transaction of other business, and that the partnership has never been dissolved; says that plaintiff has invested large sums of money belonging to the firm in lands which he now holds in his own name, but for the benefit of the firm, and that defendant has done the same; and he asks for an accounting, that the indebtedness of the firm be ascertained and made a charge upon the property, that a dissolution be decreed, and for other relief.
The case was tried in equity, and a decree entered by the court on August 19, 1911, finding that certain of the real estate standing in the name of the defendant was the individual property of said W. C. Smith; that other lands stand
On the same day the decree was entered, plaintiff filed a motion for new trial, setting up seventeen different grounds, some of which are that the findings and decision of the court are contrary to both the law and the evidence; that the court erred in finding that any partnership relation existed between plaintiff and defendant in respect to the land held by each in his own name; that the court erred in finding that defendant or Smith Bros, had any interest in .the three hundred and sixty-acre farm owned by plaintiff located in Wright county; and that the court erred in numerous other findings in the decree. The motion continues:
(16) That the plaintiff has discovered since the trial in this- court that defendant has $5,000 deposited in the State Bank of Cooperstown, in North Dakota, which was taken from the funds held by the court to be partnership money. The defendant should be required to account in this proceeding for this money.
(17) That since the trial in this court the plaintiff has found that the defendant has repeatedly admitted that the three hundred and sixty-acre farm of this plaintiff in Wright county, Iowa, is the plaintiff’s individual property.
In support of the sixteenth and seventeenth grounds of this motion, the plaintiff will introduce the testimony of witnesses.
On October 27, 1911, plaintiff filed an amendment to his motion for new trial, leave of court having been first obtained, stating that he had discovered new evidence since
The ruling on the motion for a new trial' was general, and in the following words: “Motion for new trial sustained, and defendant excepts.”
The appellant argues that plaintiff’s affidavit does not show due diligence in discovering the alleged new evidence; also claims that such testimony is not material or competent, and that-it is cumulative. As to the question of plaintiff’s diligence, the showing is very much the same as that in Eckel v. Walker, 48 Iowa, 225, and Bullard v. Bullard, 112 Iowa, 423.
The proposed new evidence, set out in the affidavits, would contradict the defendant in important respects, and would tend to corroborate the evidence of plaintiff. It is difficult in many cases to determine when evidence is cumulative. It has been defined to be evidence of the same kind to the same point. The testimony of these different witnesses, as set out in the affidavits attached to the motion, was as to admissions alleged to have been made by the defendant at different times. In this ease the question, or, at least, one of the questions, was as to whether the lands standing in the names of plaintiff and defendant were lands belonging to the parties individually, or whether they belonged to the partnership-. Admissions by defendant that land standing in plaintiff’s name belonged to plaintiff would be proper. There was a conflict in the evidence. In such a case the issue is often-determined by the number of witnesses, .'and addi
Q0W in tllis C0Urt on aPPeal. State ex rel. Stewart v. Anderson, (Iowa) 80 N. W. 430; In re Wilson, 138 Iowa, 225; Johnson, Lane & Co. v. Nash-Wright Co., 121 Iowa, 173. Plaintiff had leave of court to file the amendment.
Our first inclination was to so modify the ruling of the