Perry v. Houseley

McCay, J. 1. Whilst We are not quite satisfied with the verdict of the jury in this case, yet as the Judge below has not seen fit, in the discretion which the law gives him, to grant a new trial, we will not reverse his judgment. There, is certainly some evidence to support this verdict. The simple fact that Perry gave his own note for the jack is evidence, and, under the circumstances, evidence of some strength. We incline to think that under the testimony the jury might well have concluded that each of these parties was-playing fast and loose with the other until the death of the jack made it the decided interest of both to take up the line, on which they both so firmly determined to fight it out on the trial. We are not sure that Perry, whilst the jack was living and flourishing — with brilliant prospects of character and reputation — was at all ready to admit that the other, was a partner. And we also feel pretty certain that the other was much more decidedly of opinion that he was not a partner after the jack’s death than he was before. Both of them, we incline to think, have changed front since the death of the jack, and we will not disturb the verdict which the jury has rendered. The main point of controversy on the trial was the partnership. Evidence was produced by both parties on that point. Especially did the complainant introduce such evidence. Two or three witnesses testified, as to the defendant’s admissions on this point. The newly discovered testimony is only another admission by the defendant; true it is at another time, and it suggests an explanation or denial of some of the statements in the answer on the subject. But at last, it' is but another admission of the defendant bearing on the principal point controverted on the trial, and under the settled rule it is merely cumulative and is not a ground for a new trial: Graham & Waterman on New Trials, vol. 3,1046 et. seq. This rule is a necessary one. If parties -.were to have a new trial because they have found out a new witness to prove [660] the truth or untruth of the points upon which they have already been heard, there would be no end of litigation but the patience and purses of the litigants. The public has some rights, and the Courts are not called upon to heat and rehear, at the discretion of the parties. It is therefore the public policy of the country, that cumulative ■ evidence is not a good ground for a new trial. As the mind of the parties was distinctly directed to the point, and evidence was heard upon it, the country will not open the case that more testimony may be heard upon the same point. We therefore affirm the judgment. The jury had a right under the evidence to find as they did. Either of these parties has said enough to justify a verdict against him. Judgment affirmed.