Welles v. Harris

Hinman, C. J. The question in this case is, whether the auditor committed such an error in refusing to grant to the defendant a rehearing after the trial had been closed as that the superior court should have set aside his report. The dispute at the trial was as to the amount of the indebtedness of the defendant. He had received of the plaintiff a quantity of tobacco which he had sold and converted into cash, and it was claimed by the plaintiff that the defendant had purchased — 368 — it of him before he so sold it at fourteen cents per pound, while the defendant claimed that he received it to sell for the best price that could be obtained for it, and that he was entitled to a reasonable commission on the sale as a compensation for his services, and that therefore he was 'only indebted for the amount which he obtained for it after deducting such commission. The plaintiff testified that a Mr. Chapman had offered him fourteen cents, and that he so informed the defendant, who replied that if Chapman would give fourteen cents for it he would, and the defendant thereupon agreed to buy and the plaintiff agreed to sell it at that price and the sale was then completed. The defendant then made some exertions to procure the attendance of Chapman before the auditor, but did not succeed ; and, as the remonstrance states it, he had no reason to doubt the truth of the plaintiff’s statement and so did not ask for a delay of the trial ” to enable him to procure his testimony. But on learning, after the completion of the trial, that Chapman would testify differently, he then applied to the auditor for a rehearing, which was refused solely on the ground that he bad no power to open the case after the trial was once closed. We are all of opinion that the reason given by the auditor for refusing to grant the defendant’s motion was an unsound one; for, although the formal hearing was finished, and the report was prepared, still, as it was not returned to the court, and his decision does not even appear to have been made known to the parties, we have no doubt that, for the purpose of hearing additional evidence which might vary the result of the trial, the case was still within his control; and it was not only competent for him to grant a rehearing, but for any reasonable cause, such as the discovery of new evidence, which would be sufficient ground for an application for a new trial, either at law or in equity, it would be his duty to grant it, on giving notice to the opposite party. And we should certainly have been better pleased with the course of the auditor if he had given the parties a hearing on the motion for a further trial, and had exercised his discretion in refusing it, instead of disposing of it as it appears from the — 369 — motion that he did, upon the ground that he had no power to grant it. The remonstrance upon which those facts appear, though to be taken as true, because it is demurred to, is still to be construed as all pleadings are in cases of doubt, against the party whose attorney drew it up. We allude to this for the reason that it is stated in it, that the plaintiff had no reason to doubt the truth of the plaintiff’s testimony, and so did not ask for a delay of the trial to enable him to procure the testimony of Chapman. Of course this must refer to that portion of the plaintiff’s testimony which relates to the conversation between him and Chapman, and in respect to which we think it amounts to an admission that he voluntarily consented to waive the testimony of Chapman, and to rely alone upon the testimony of the plaintiff on that point. This admission, moreover, amounts to a very strong implication that the plaintiff did inform him that Chapman had said that he would give fourteen cents for the tobacco, since otherwise it would be impossible for him not to doubt the correctness of the plaintiff’s testimony. But, however this may be, we think a party ought not to be allowed to take his chance of obtaining an award in his favor upon such evidence as he may happen to have at a trial, and if he fails in his object, to then have an opportunity to look up witnesses, whom, as in this case, he had every reason to suppose might be able to give important evidence in his favor, and in this way to experiment upon the chance of obtaining a more favorable result on a second trial. We think, therefore, that there was such laches in suffering the trial to proceed without even moving for a postponement, as would have made it the duty of the auditor as a matter of discretion to refuse the application to re-try the cause. Still, as he refused to grant the motion on the ground that he had not the power to allow it, and therefore had no discretion to exercise in the matter, we have no doubt tiiis was such an error as ought to set aside the report, if the evidence itself which the party in his motion alleges that he can now procure was in our opinion such as ought, or might reasonably be expected, to vary the result. We find, however, that the evi — 370 — dence which the remonstrance states the defendant can now procure from Chapman is of such a character that we are entirely satisfied that it ought not to vary the result if it should now be introduced. And, as the application for a rehearing was in the nature of a motion or petition for a new trial, we think it should not only appear that the evidence was new and undiscovered at the time of trial, and could not have been had by the use of reasonable diligence, but that it is material evidence, and sufficient probably to produce a different result, as is required in applications for that purpose. See Norwich & Worcester R. R. Co. v. Cahill, 18 Conn., 484. It appears by the remonstrance that the new evidence which the defendant proposes to introduce, consists of a contradiction by Chapman of the declaration which the plaintiff testified that Chapman made to him in respect to an offer of fourteen cents for the'tobacco, and of a statement by Chapman that the plaintiff informed him that the tobacco was in the defendant’s hands to be sold on commission. Now in respect to what the plaintiff testified that Chapman told him he would give for the tobacco, it has already been suggested that the defendant, by consenting to go on with the trial, without asking for a postponement to enable him to procure Chapman’s testimony, must be regarded as having waived the evidence which ho now proposes to introduce to contradict the plaintiff. And in addition to this, we think the remonstrance leaves it a little doubtful whether the plaintiff’s testimony on this point was admissible at all, if it had been objected to by the defendant. What Chapman had said he would give for the tobacco was of no importance whatever unless communicated to the defendant and acted upon as the foundation of his agreement to purchase ; and even then the question was, what was the contract which the defendant made, rather than what Chapman had proposed to make. And unless the plaintiff’s conversation with Chapman bore upon this question it was clearly inadmissible as hearsay, and the proper course would have been for the defendant to object to it as such. If a party suffers improper evidence to be introduced lie should be concluded by it; or, at any rate, he can — 371 — not let it be received for the purpose of laying the foundation for a new trial because he can contradict it. But assuming it to have been admissible, it seems to have been of so slight importance in the opinion of the defendant that he chose to suffer the trial to proceed without asking a postponement in order to disprove it; and although he alleges that it surprised him, still, if he chose to suffer the trial to proceed, we think he ought not now to be allowed to use it as the foundation for another hearing, unless indeed it appeared that the evidence ■was of so controlling a character as would probably alter materially the report of the auditor. It appears to us also that the admission which the remonstrance alleges that the defendant made to Chapman is an insufficient ground for another trial. This undoubtedly would have been proper evidence, still its whole force and effect depends upon the time when the admission was made. If made before the contract of sale to the defendant was claimed £o have been made it would have'beeu of no importance whatever, as the tobacco might at that time have been in the defendant’s hands to sell on commission, and might afterwards have been sold to him. And this we infer was the claim of the plaintiff on the trial. Considering therefore the uncertain and unsatisfactory char acterof the testimony and its admitting of explanation consistently with the claim made by the plaintiff, and the fact that nothing is stated from which its weight and importance can be inferred, we think enough is not shown to satisfy the rule on the subject of granting new trials for newly discovered evidence. The object of all the new evidence is to impeach the plaintiff’s testimony in respect to a sale of the tobacco. And if this object was successfully accomplished it might vary the amount of the defendant’s indebtedness to some extent. But the auditor did not credit the claims of either party. He found that the defendant purchased the tobacco, it is true, but not finding that it was purchased at the price claimed, he allowed only its market value at the time. This could not have done very great injustice to the defendant, as he admitted that he had sold it, and was accountable for the avails received after — 372 — deducting Ills commission. And as it was his duty to sell it for the best price that could be obtained for it, the presumption must be that he obtained at least its market value. When the controversy is so trifling in respect to the amount of the debt, and the award appears to be just and equitable even in that respect, we think the defendant ought to present a more satisfactory ground for a rehearing than he has shown in the present instance. We do not find therefore that there was any error in overruling the remonstrance and accepting the auditor’s report. In this opinion the other judges concurred.