Sawyer v. La Flesh

Cassoday, J. The undisputed evidence is to the effect that all, or nearly all, the services rendered by the plaintiff consisted in his examining the books of the defendants, and ascertaining how the accounts stood between them as appeared from their books; and that he did all of such serv-', ice in the absence of the other arbitrators named, except on the last day, when all the arbitrators were together, and the controversy was settled. The court, in effectj- so charged the jury; and, further, that the plaintiff could not recover at all unless they found from the evidence that the defendants promised to pay him five dollars a day for the kind of service which he did in fact render. The verdict of the jury'is to'that effect. It is urged that there is no sufficient evidence to sustain such finding. But a careful examination of the printed case and the bill of exceptions convinces us that the evidence is sufficient to sustain the verdict, and that the court was justified in submitting the case to the jury. That question is really one of fact, upon which discussion would be unprofitable. It seems to us that ■ the court very fully and fairly submitted the whole case to the jury, and in no way prejudicial to the defendants. We find nothing in any of the eight several instructions requested by the defendants properly applicable to the 661 case 'which was not, in substance, given to the jury in the general charge. We do not feel called upon to consider them, nor the several propositions contained in the charge, seriatim. As indicated, the real question here involved is one of fact. The application for a new trial on the ground of newly discovered evidence was clearly insufficient. It was merely to the effect that since the trial one of the plaintiff’s witnesses had been enabled to remembbr the contents of the lost stipulation much better and more fully and favorably to the defendants than he could on the trial. The affidavit of the witness to that effect is not produced, and no adequate reason is given for its non-production. No effort seems to have been made before the trial to ascertain what he remembered, nor to stimulate his memory, notwithstanding he drew the stipulation, and it was last known to be in his custody. Besides, there seems to have been sufficient evidence outside of that writing to sustain the verdict. We are clearly of the opinion that the court 'was justified in refusing a new trial on the ground of newly discovered evidence. By the Qov/rt.— The judgment of the circuit court is affirmed.