Vessey v. Tiedeman Mortgage & Finance Co.

Stephens, J. 1. In a suit upon a note given for the purchase-price of a described automobile, where the defendant pleaded non est factum and there was evidence for the defendant that he did not buy the automobile from the seller and had never owned an automobile of the description of that one, alleged newly discovered evidence, as a ground for a motion for a new trial made by the defendant after a verdict for [291] the plaintiff, that prior to the date upon which the note purported to have been executed the seller sold the automobile to a third person, was merely cumulative of the evidence adduced upon the trial; and, since this evidence did not exclude the possibility that the automobile had been retaken by the seller and resold to the defendant, it was not calculated to produce a different result. Decided August 24, 1929. Herbert W. Wilson, I. J. Bussell, for plaintiff in error. Parker & Parker, contra. 2. There being evidence from a comparison made by witnesses of the signature of the note sued on with established signatures of the defendant that, in the opinion of the witnesses, the signature of the note sued on was the genuine signature of the defendant, and there being other circumstances from which the jury could have inferred that the defendant executed the note sued on and that it was given for the purchase-price of the automobile described, and there being no denial of the allegations in the plaintiff’s petition, other than as contained in the plea of non est factum, the verdict found for the plaintiff was authorized. 3. The court did not err in overruling the defendant’s motion for a new trial, based only upon the general grounds and alleged newly discovered evidence. 4. Although the judgment complained of was rendered June 1, 1927, the record was not transmitted to this court in time for a submission of the case to the court earlier than the October term 1928. Judgment affirmed. Jenkins, P. J., and Bell, J., concur.