Finch v. Phillips

LyoN, J. 1. In his testimony on the trial, the • defendant substantially denied that he warranted the mare sound, and stated the contract to have been that if she did not suit the plaintiff* after he had tried her, the defendant would let him have buggies or other horses for her. The letter of June 7, 1874, the admission of which in evidence is assigned as error, is not as pointed as the testimony of the defendant, yet perhaps it may fairly be understood as implying the same version of the contract. We have then a case in which a party has been permitted to give in evidence his written declarations on the subject matter of the controversy, made after the [392] controversy bad arisen, wbicb declarations accord with bis testimony on tbe trial. It is clear tbat tbe letter ought not to bave been admitted; for it was a mere ex parte statement by tbe party in bis own interest. But it by no means follows tbat its admission will work a reversal of tbe judgment. That result only follows when the appellant may bave been prejudiced by tbe error. We are entirely unable to perceive bow tbe plaintiff could bave been prejudiced by tbe letter in question. It does not strengthen bis testimony in tbe least, but, because it does not directly and positively deny tbe warranty and assert tbe contract to bave been as tbe defendant ¡now claims and testifies, it rather weakens bis testimony. Tbe point was ruled in Hazleton v. The Union Bank of Columbus, 32 Wis., 34, where it was held tbat tbe improper admission of such testimony under similar circumstances was not cause for reversal, (pp. 45-6.) See also Schaser v. The State, 36 id., 429. We must bold, therefore, tbat tbe admission of tbe letter of June 7th is an immaterial error. 2. A witness of great intelligence, and evidently a very competent expert in matters pertaining to horses, after testifying that be examined tlie mare in controversy a short time after she arrived at Oshkosh, and found tbat she had a bone spavin in process of formation, was asked tbe following question on behalf of tbe plaintiff: “ Is not a horse tbat lias a bone spavin more likely to be injured in tbat place than it is before it is spavined?” An objection to this question was sustained, and it is claimed tbat tbe ruling is erroneous. Tbe answer to tbe question might bave tended to show the effect of tbe unsound ness, and hence was competent as affecting tbe amount of damages. It is not apparent tbat it was admissible for any other purpose. Inasmuch as the jury did not reach tbe question of damages, tbe exclusion of tbe testimony did not injure or prejudice tbe plaintiff. 3. Tbe defendant was allowed to testify in bis own behalf tbat be did not think it possible for tbe mare to bave a bone [393] spavin wben be sold ber, and be not know it. "We tbink tbe testimony admissible. Tbe above are the only exceptions taken to tbe rulings of tbe court during tbe trial which are relied upon by the plaintiff. 4. Tbe foregoing views dispose of the motion for a new trial so far as it is founded on alleged erroneous rulings during tbe trial. Tbe question only remains, Should tbe motion have been granted for newly discovered evidence? It is claimed for tbe defendant that tbe motion was properly denied on two grounds: 1. Because the plaintiff failed to show that be exercised proper diligence to discover tbe evideiice before tbe trial; and 2. Because tbe newly discovered evidence is merely cumulative, and hence, no ground for a new trial. As to tbe first objection, it is sufficient to say that we find nothing in the case which tends to show a want of diligence by tbe plaintiff in this behalf. It does not appear that the plaintiff’s agent who passed through Bond du Lae with the mare, or any witness produced on the trial, knew that Eycles-heimer had examined the mare; and we discover no fact in the case sufficient to have put the plaintiff on further inquiry as to who examined the mare in Fond du Lac. Is tbe alleged newly discovered evidence merely cumulative to that introduced on tbe trial? There was considerable testimony introduced to the effect that an examination of the marc some days after ber arrival at Oshkosh disclosed indications of a bone spavin in process of formation on her near hind leg; and witnesses gave their opinions as to the time which bad probably elapsed since tbe injury was inflicted that caused those indications. But no witness testified to having discovered the same before that time; and the only evidence that these indications existed when the plaintiff purchased the horse was the opinion of the experts based upon their knowledge of the nature and characteristics of the alleged unsound [394] ness. Because they found the spavin in process of formation in February,'they inferred (perhaps correctly), and the jury were asked to infer, that her condition was the same in January. But there is reason to believe that the jury failed to do so. In the late case of Wilson v. Plank, ante, p. 94, we had occasion to consider what is cumulative evidence, within the rule which prohibits the granting of a new trial for newly discovered evidence of that chardcter. We there held that evidence which establishes a given fact is not cumulative to that which establishes another fact, although both facts may tend to prove the same proposition or issue. j In the present case the issue was, whether the mare was spavined when the plaintiff purchased her in January. I The evidence on the trial was to the effect that at a certain time after the purchase the mare was spavined, or that there Avere indications that she had received an injury from which a bone spavin was being developed. From this'fact and other ¡evidence the jury might have found that the unsoundness existed at the time of the sale. The evidence tended, therefore, to prove the issue for the plaintiff. But the jury may have found, and probably did find, the evidence insufficient for that purpose. The newly discovered evidence is to the effect that at a prior time, and very recently after the purchase, the mare had a bone spavin in such a stage of development that it must have existed at the time of the purchase. This evidence would also tend to prove the issue for the plaintiff, and in that sense is cumulative, but it would tend as well to prove a distinct fact which the plaintiff was unable to prove oh the trial, and in that respect is not cumulative. ITad Eyclesheimer testified to that fact on the trial, his testimony, if the jury believed it to be true, would have proved the unsoundness of the mare at the time the plaintiff purchased her. Hence, the alleged newly discovered evidence is material. We are impelled to the conclusion that the case is within [395] the rule of Wilson v. Plank, supra, and tliat a new trial should have been granted. By the Goxirt.- — The judgment is reversed, and the cause remanded with, directions to the circuit court to award a venwe facias de novo on such terms as that court shall deem just.