File No. 4881 | S.D. | Jul 16, 1921
Lead Opinion
Appeal from an order granting defendant a new trial upon the ground of newly discovered evidence. No other errors are assigned, and the record contains only such matters as are technically material to a review of the order.
The action was to recover commissions for the alleged sale of 640 acres of land owned by defendant, which plaintiffs claim was listed with them on the. following terms, namely: Price, $65 per acre;.$2,500, cash upon execution of a contract of sale; $7,500 to be paid March 1, 1920, balance'in 10 years from March 1, 1920, with interest at 6 per cent, per annum. Plaintiffs allege that they sold the land for $80 per acre to one Philip Baker, who executed a written contract evidencing the • sale, and paid $3,200 cash, and that the terms of the sale were in accordance with the terms prescribed in the listing contract. Defendant’s answer admits that he listed the land: with plaintiffs for sale, but denies that the terms of sale were as claimed by plaintiffs, and alleges that the listing was specifically limited to a period ending July 1, 1920, and denies that plaintiffs made any sale of the land prior to July 1st.
At the trial the plaintiff Zarneke testified that the day the land was sold. to Baker he wrote out a telegram to defendant,
Defendant Kitzman, called by plaintiffs as an adverse witness, testified that he did not have the letter of June 23d, had given it to his attorney, and did not know what had become of it; that he had searched for it everywhere, but was unable to find it; that he knew its contents; that it was received through the mail; that it was in substance:
“We ain’t sold your land yet; we are going to take it over ourselves. Come up for settlement.”
As á witness on his own behalf, Kitzman testified that he came up on July 8th; that he went up to the office and saw' Mr. Zarneke—
“and told him I was there after my money. He said: ‘It was a ■March 1st settlement,’ and I said, ‘It wasn’t. If the land was sold I wanted my money, the $10,000.’ He refused to do anything. Nothing further was said; saw Mr. Fryer the following-day, and demanded the $10,000. Fryer said: ‘That wasn’t the agreement.’ ”
Both Zarneke and Fryer were witnesses at the trial, but neither was interrogated as to the contents of the telegram letter of June 23d. At the time of the trial, the letter had been lost or mislaid by defendant’s counsel, and could not be produced.
Upon the motion for a new trial, Mr. Moriarty, defendant’s counsel, presented an affidavit stating, in substance, that during the trial he had made diligent search through the files of his office for the letter, but was unable to find it; that after the trial he discovered it among the papers and files in another case; that the letter attached to his affidavit is the original letter handed to
“Can you come here for settlement for farm; if not, wire us. Haven’t sold yet, but will take it over ourselves. Zarneke & Fryer.”
The record before us discloses that no sale was consummated because of a controversy between plaintiffs, and defendant Kitzman over the terms of the listing contract, plaintiffs claiming that it provided a cash payment of $2,500 upon the execution of the contract and a further cash payment of $7,500 on the following March 1st, while defendant insisted he was to receive a cash payment of $10,000 upon consummation of the sale.
At the trial, over defendant’s objections, plaintiffs were permitted to give oral testimony as to the commission to be paid and the terms and conditions of the listing contract, and also oral testimony that they had advised' Kitzman by.the telegram letter of June 23d and another letter of June 30th that they had sold his land to Baker upon the terms specified in the listing contract. Defendant denied the sale, and denied having received the latter communication.
Appellants’ contention is that the telegram letter of June 23d is not material evidence, being cumulative; that it is not sufficiently strong and of such a decisive character as to render a different result reasonably certain; that the only claim that can be made is that it tends to impeach Zarneke and corroborate the defendant; that there was not such showing of diligence in respect to the letter as would warrant the granting of a new trial.
The materiality of newly discovered evidence is measured by the probability of a different verdict if a new trial is had. The statement that such evidence may not be impeaching or cumulative'is merely corollary to a probable change of verdict.
In Mercer v. King, 42 S. W. 106, 19 Ky. Law Rep. 781, the newly discovered evidence consisted of a writing which had been lost, concerning the provisions of which there was a conflict of evidence. The court held that the instrument itself might have a preponderating influence in the decision of the issue. Kellogg v. Finn, 22 S. D. 578, 119 N.W. 545" court="S.D." date_filed="1909-01-27" href="https://app.midpage.ai/document/kellogg-v-finn-6687088?utm_source=webapp" opinion_id="6687088">119 N. W. 545, 133 Am. St. Rep. 945, 18 Ann. Cas. 363.
In Berggren v. Mutual Life Insurance Co., 231 Mass. 173" court="Mass." date_filed="1918-10-10" href="https://app.midpage.ai/document/berggren-v-mutual-life-insurance-6434518?utm_source=webapp" opinion_id="6434518">231 Mass. 173, 120 N. E. 402, commenting on the matter of discretion in granting new trials because of newly discovered evidence, the court said:
“Of course all the elements present on this record do not require, as matter of law, the granting of a new trial. All that need be said is that they afford adequate foundation for the exercise of judicial discretion to that end, provided in the opinion of the presiding judge it was wise, in order to accomplish justice.”
The order of the trial court is affirmed.
Concurrence Opinion
(concurring specially.) No “newly discovered” evidence -was presented to the trial court on motion for new trial. What constitutes “newly ¡discovered” evidence is clear
“Where written evidence was lost or missing at the time of the trial, he (the moving party)' must have asked for a continuance or delay to enable him to produce such * * * evidence.”
That this decision may not mislead'the bench and the bar as Waite v. Fish seems to have done, -we should sustain the lower court, not because -the evidence was in fact newly discovered, but because it was so treated by appellants in the trial court.