Ricker v. Horn

DANNorth, J. The defence in this case, is that the contesting defendant Horn had withdrawn from the firm before the plaintiff’s claim had accrued and that the plaintiff had seasonable notice of that fact. It is conceded that, during previous similar dealings between the plaintiff and the defendant firm, Horn was a member of it, and the evidence clearly shows, that the credit for the board now in suit was given to the three members though largely to Horn, and that while the debt was accruing the conduct of Horn in relation to the partnership business was suchas abundantly to justify such credit, unless the plaintiff had previous notice of his withdrawal. The defendant asserts that such notice was given, and the burden of proof is upon him. The plaintiff admits a notice but says it was subsequent to the origin of the debt, and this presents the main issue between the parties. Upon this issue the preponderance of the evidence introduced at the trial would seem to be in favor of the plaintiff, but perhaps not sufficiently so to authorize a disturbance of the verdict. [291] But with the evidence now offered, ©specialty if we consider the great improbability that the plaintiff, under the circumstances developed, should continue to give credit to a firm after notice-of the withdrawal of the only responsible member, the case largely preponderates in favor of the plaintiff’s theory. True, the additional testimony is not newly discovered so as to authorize the setting aside the verdict on that ground. Nor should, we deem it proper to set it aside on the ground of surprise alone. But the testimony of the defendant raised an issue which upon< the plaintiff’s theory she could not have been expected to have-anticipated. She did anticipate the withdrawal as a defence, but not the prior notice of that withdrawal; and if, as she says, it is false, she had a very substantial reason for her failure. It is quite probable that she was surprised when she learned of the defence made, and had she been present at the trial should have-moved for delay until she could procure the testimony she has-now produced. But she was absent, and as appears for a very-good reason, and therefore could not then or at any previous time-have given her counsel information of a defence of which she had no knowledge. Thus without fault on her part, the action went to trial in the absence of testimony important to the issue, and such as might well change the result. She evidently lost her verdict upon testimony which she alleges-to have been false, whether wilfully or mistakenly so is immaterial, and the evidence she now offers tends strongly to prove it so. This has not been passed upon by the jury, and we think justice-requires that it should be. Motion sustained.. Appleton, C. J., Walton, Virgin and SymoNds, JJ.,, concurred.