17 S.D. 215 | S.D. | 1903
This is an action on a promissory note bearing date of January 3, 1895, executed by the defendant to the firm of Van Brunt & Waite, for the sum of $379, and transferred by the said firm to. the plaintiff. The verdict and judgment were in favor of the defendant, and from the judgment and order denying a new trial the plaintiff appeals.
The defendant admits the execution of the nóte, but alleges that the said note was given to one Henry Van Brunt, wlio was a partner of the plaintiff, and that all the transactions set forth in the answer were had with the said Van Brunt. The defendant then set up by way of defense that the note in controversy was signed and delivered to said Van Brunt as collateral security only to the notes and indebtedness held by
It is contended on the part of the defendant that sufficient diligence to obtain this evidence is not shown upon the part of the plaintiff, but we are of the opinion that there is no merit in this contention. Mr. Flickinger, an attorney on the part of the plaintiff, residing at Council Bluffs, Iówa, and who attended to the taking of the depositions in this case, says in his affidavit that he personally knew that Mr. Van Brunt-made a thorough search for the letters and books referred to prior to the trial of the case, and prior to the time Mr. Van Brunt’s deposition was taken, but he could not find the same, and that the same were found after the trial of the case, after a laborious search. Mr. Van Brunt, in his affidavit, says that “at the time of the taking of my deposition, and prior thereto, I was requested by Mr. Flickinger, and also by the attorneys for Mr. Fish, to produce the old books of account, and I did then, and did after-wards make diligent search for the same”; that “I had lost track of said books, and could not find the same at that time, or at any other time, until after the trial of this action;” that ‘ ‘a month or two after said trial, in looking over odds and ends and discarded matters, I accidently found the books in my basement. ” It thus fully appears that the account books and
The judgment and order denying a new trial are reversed, and a new trial granted.