Wilson v. Clarke

27 Miss. 270 | Miss. | 1854

Mr. Justice Handy

delivered the opinion of the court.

The defendant in error brought this action of replevin against the firm of Wilson, Richards & Co., of which the plaintiff in error was a partner, for a quantity of timber, under the act of 1842. Wilson alone executed his bond with sureties under the 3d section of the act, and a plea was filed for all the defendants. On the trial, it was proved in behalf of the plaintiff, that the timber was seen at the landing of the defendants near their saw-mill on the Yazoo River, and that the defendant Wilson spoke of it as the Clark timber which he had bought of Biggs in August, 1850. There was also evidence offered as to the value of the timber. It was then proved, on the part of the defendants, by witnesses Biggs and Morris, that Biggs was authorized by the plaintiff to sell the timber, and that he sold it to defendant Wilson for what was considered a full price, and he paid the money. It was proved by Hunter, a witness for the defendants, that he saw Wilson purchase the timber from Biggs; that the purchase was made for himself and not for the firm, they being already sufficiently supplied with timber. Defendants’ counsel then moved the court to direct the jury to return a verdict immediately for the defendant Johnson, one of the firm of Wilson, Richards & Co., in order that he might be examined as a witness, which the court refused to do, and the defendants excepted. They then offered said Johnson as a witness to prove that the price, $666.50, paid by Wilson for the timber, was a full and fair price for it at the time, the witness having stated on his voir dire that he had no interest whatever in the result of the suit, and that Wilson purchased the timber on his own individual account; but the court refused to permit him to testify, and the defendants excepted.

The plaintiff then introduced two witnesses for the purpose of discrediting the defendants’ witnesses Biggs and Morris.

The jury found a verdict in favor of the defendants Richards and Johnson, but in favor of the plaintiff against Wilson, for $1,137.50.

A motion was made for a new trial, because of the refusal to direct a verdict to be rendered for the defendant Johnson, and for the exclusion of him as a witness, because of newly discovered evidence and surprise, which motion was accompanied by the affidavits of Wilson and several other witnesses. Upon the decision of the court below, overruling this motion, the case is brought here.

In regard to the refusal of the court to direct a verdict to be rendered discharging the defendant Johnson, we think the decision was proper. Had there been no evidence whatever tending to show, or from which the conclusion might have been drawn, that the timber was in possession of the firm, or was held as their property, the court should have directed the verdict instantly in favor of Johnson. 1 Greenl. Ev. § 358. But the plaintiff had offered evidence that the timber was lying at the landing of the firm near 'their saw-mill; and though this might not be considered as sufficient evidence to charge the firm, yet it could not be said that there was a total want'of evidence tending to charge them; and it is only in the absence of all evidence that this power should be exercised by the court.

Nor do we think it was error to exclude the defendant Johnson as a witness without a verdict discharging him. Pie appeared of record as a party to the suit, and was joined in the plea with his codefendants, and was liable for costs. If the verdict had been against the firm, he would have been bound, and his testimony therefore tending to show the value of the timber to be less than the value proved by the plaintiff’s witness, would have been directly to his own benefit. It is not a sufficient answer to this to say that as Wilson alone had executed the bond, the judgment could have been rendered only against him and the sureties on his bond. If the verdict had been against the firm, they would at least have been liable for the damages which might have been assessed by the j ury for the wrongful taking or detention of the property; and, in case of such finding, the bond of Wilson might very possibly be obligatory on the firm. For any of these reasons, and under the circumstances of the case, we do not think it a proper case to relax the rule disqualifying a defendant who is a party to the issue, as a witness for his codefendant. Safford v. Laurence, 6 Barb. 566, and authorities there cited.

The third ground of error presented is, that the defendant was surprised by the introduction of evidence to discredit the witnesses introduced by him to make out his defence.

It appears from the record, that Wilson purchased the timber from the witness Biggs, and the case depended upon whether Biggs had authority from Clark, to whom it belonged, to dispose of it. In order to establish that fact, Biggs, who made the sale, and Morris, who had been intimately connected with Clark in relation to the timber, were introduced by the defendant and fully proved it. The affidavit of the defendant, in support of the motion for a new trial, shows that he relied on these witnesses as entirely sufficient for his defence, and that he had no notice whatever that their credibility would be impeached, but that it was impeached; and he shows by the affidavits of two of the jurors, that but for that, the verdict would have been different. He states, that he was surprised at this impeachment of his witnesses, who were a great distance from their homes, one residing in Tallahatchie, and the other in De Soto county, and it was therefore impossible for him to establish their credibility. He states that he has learned since the trial that they are men of veracity, and presents the affidavits of two witnesses residing in the county of Morris’s residence, and one witness residing in the county of Biggs’s residence, testifying to their good character for veracity, and that he believes he can fully vindicate their characters from the attacks made, but which he was wholly unable to do under the circumstances of the case. Pie also presents the affidavit of a witness discovered since the trial, testifying to the fact that Biggs was authorized by Clark to make the sale, and fully corroborative of the facts stated by Biggs and Morris. The affidavits and testimony tend strongly to show a meritorious defence.

This appears to us a clear case of surprise, and such as care and prudence could not provide against. It is not to be supposed that the defendant could anticipate that two witnesses summoned by him, and relied upon to establish his defence, would be attacked as unworthy of credit on oath, for every man is, in legal presumption, to be considered as truthful and credible until the contrary is shown. Much less is a party to act upon the supposition that his witnesses will be impeached, and come prepared with a host of witnesses to vindicate their characters. Such a rule would be, in the last degree, inconvenient and mischievous. In the present case, the evidence shows a strong probability that the credit of the witnesses attached could be established, if an opportunity had been allowed, but that it was impossible for the defendant to do so, situated as the witnesses were, and under the circumstances in which they were impeached.

We think this case comes clearly within the rule authorizing the granting a new trial, that is, “ when a party or his counsel are taken by surprise, whether by fraud or accident, on a material point or circumstance which could not reasonably have been anticipated, and where want of skill, care, or attention cannot be justly imputed, and injustice has been done, a new trial will be granted.” Graham on New Trials, 168, and numerous cases there cited.

The judgment is therefore reversed, the verdict set aside, and the case remanded for a new trial.