62 Me. 189 | Me. | 1874
Ham and Todd, as sureties for one Hall, were liable jointly and severally with him upon a note to Ohipman. Todd without paying anything for the note procured a suit against Ham to be commenced upon it in Chipman’s name, giving Chip-man a guaranty against any liability for costs. Ham’s property was attached and Kelly & Wadsworth receipted for it, took it into their possession, sold it, and credited the proceeds to Ham.
Sawyer & Kelly gave their note to Chipman in exchange for that note, took an order for it from him upon the attorney who commenced the suit against Ham, discontinued that suit without the consent of Todd, and instituted a suit in Chipman’s name against Todd. That suit was defended and Ohipman and Ham and Todd all testified as witnesses for Todd. Chipman prevailed : see case reported 60 Maine, 282. Todd now petitions for a review alleging that Chipman will now testify that the note was not bought from him, but was paid by Sawyer & Kelly for Ham, and that Ham will now testify that Kelly & Wadsworth paid this note for him, and so told him, and charged the note to him, and that through inadvertence the agreement of Todd to hold Ohipman harmless from costs at the first suit was not put into the case at the former trial.
The petitioner’s exceptions now before us state that upon the presentation of this petition the presiding judge ruled, as matter' of law, that the review could not be granted. Apparently he did so upon one of two grounds either of which would be tenable.
I. A review will not be granted to enable a party to put in testimony which either was or might with reasonable diligence have been within his knowledge and reach at the trial of the original cause, and was either wilfully suppressed or negligently omitted. All that the petitioner proposes to add to his case was either known to himself personally at the time of the former trial, or was as much within the knowledge of his witnesses, Ohipman and Ham, then as now, and might have been had for the asking.
The paper said to have been omitted adds nothing to the effect of the admissions and uncontradicted testimony at the former trial with regard to the commencement of the suit against Ham in Chipman’s name, by Todd. Should Chipman now testify that the note was paid by Sawyer & Kelly for Ham and not bought by them, his story would hardly gain credence when confronted with his former version of the transaction and the probabilities of the case. Ham’s testimony at this late day, that it was paid for him by "Wadsworth & Kelly, besides being inconsistent with Chip-man’s proposed testimony, is equally improbable. No reasonable motive can be urged for their doing that which would defeat the very object they apparently had in view, which was the securing of their own claims against Ham.
Finally, we do not see that injustice was done. There was a contest for precedence among Ham’s creditors. Todd started first but failed in the end because he neglected to secure the irrevocable control of the note by paying for it in the outset. He must abide the result. Exceptions overruled.
