Keystone Grain Co. v. Johnson

Christianson, J. This is an appeal from an order granting plaintiff’s motion for a new trial on the ground of newly discovered evidence. The plaintiff is a grain brokerage concern; the defendant is engaged in the real estate business and in farming. On September 6, 1916, the defendant instructed the plaintiff by telegraph to “sell 7,000 flax to arrive. Two dollars or better.” The plaintiff immediately complied with the request, and sold for the defendant 7,000 bushels of flax to arrive at $2.02f per bushel. The defendant delivered only two carloads of flax, and plaintiffs were required to buy the remainder to fill the contract at $2.68 per bushel. The plaintiff brings this action to recover $1,549.38, the amount it was required to pay in order to fill the contract. It is undisputed that, according to the usages and rules of the Chamber of Commerce, the defendant had twenty days in which to deliver the flax. There is no dispute as to the amount of flax which defendant actually delivered, or the sum which plaintiff was required to pay for the balance required to' fill the contract. The only question in dispute between the parties arises with respect to the time when plaintiff was required to close the transaction. Plaintiff claims that, according to the usages and rules of the Chamber of Commerce, it was understood and agreed between the parties that, if the flax was not delivered within twenty days, then the time for delivery should be automatically extended unless the purchaser demanded the flax. Defendant, on the other hand, contends that the delivery was not to be extended beyond the twenty-day period. He further contends that at the expiration of such period he specifically instructed the plaintiff to close the deal and buy at the then prevailing price the necessary flax to make up the difference between the amount delivered and the amount sold. These respective contentions presented the only questions in dispute between the parties upon the trial. The jury returned a verdict for the defendant. Plaintiff thereupon moved for a new trial on the ground, among others, of newly discovered evidence which it could not with reasonable diligence have produced at the trial. This appeal is from the order granting the motion. [565] The newly discovered evidence which plaintiff proposed to produce upon a retrial of the action is that of one J. H. Noon, a-farmer residing in the vicinity of Wilton. Noon makes affidavit to the effect that on or about October 31, 1916, while en route to attend a fair at Mandan, he met the defendant, Johnson, and plaintiff’s agent, Larson, in the lobby of the McKenzie Hotel, in Bismarck. And that during a conversation then had Johnson referred to the flax deal, “and stated in substance and effect that flax had been rapidly advancing in price, and that had the market price of flax gone down he would have had the laugh on Larson and his company, but as it is the laugh is on me.” That Johnson further stated in this connection: “I am a sport and am going to deliver the flax just the same.” Whereupon Larson explained to Johnson “that it made no difference to his people whether the price went up or down, as all there was in it for his company was the commission on the deal. . . . That during such conversation the said Johnson in no manner stated or intimated that he was not obliged, under his sales contract, to deliver such flax, but on the contrary, as above stated, he unconditionally stated in substance and effect that it was his intention to deliver such flax to fill the contract.” Noon further states that he never communicated the facts with respect to such conversation to any person, and that if called as a witness he will appear and testify to the facts stated. Noon’s affidavit is corroborated by the affidavit of Larson. Larson further states that he never communicated to his employers or to plaintiff’s attorneys, either the fact of such conversation or the name of Noon, for the reason that Noon’s name had escaped his recollection, and he feared criticism for inability to remember such name. Affidavits by two other persons to the effect that Noon is a man of honesty and integrity, whose reputation for truth and veracity has not been questioned, were also submitted. On this appeal defendant contends: (1) That the evidence was not newly discovered, (2) that it was cumulative and impeaching, and (3) that there was no showing of diligence. It is elementary that a motion for a new trial on the ground of newly discovered evidence is addressed to the sound judicial discretion of the trial court. The fact that newly discovered evidence which has a material bearing upon some important or controlling issue in a [566] case is also cumulative, and incidentally tends to impeach or deny the correctness of testimony given on behalf of the adverse party, does not necessarily preclude the trial court from granting a new trial on the ground of such newly discovered evidence. Aylmer v. Adams, 30 N. D. 514, 523 — 528, 153 N. W. 419. The determination of this, as well as every other question relative to a new trial on this ground, is primarily a question for the trial court, and the appellate court is not justified in interfering therewith unless the record discloses a clear abuse of discretion. The rules applicable to new trials on discretionary grounds, and the respective functions of trial and appellate courts on such motions, have been so fully discussed by this court in several recent decisions that little remains to be said in regard thereto. See Aylmer v. Adams, 30 N. D. 514, 153 N. W. 419; McGregor v. Great Northern R. Co. 31 N. D. 471, 154 N. W. 261, Ann. Cas. 1917E, 141; State v. Cray, 31 N. D. 67, 153 N. W. 425; Blackorby v. Ginther, 34 N. D. 248, 158 N. W. 354; First International Bank v. Davidson, 36 N. D. 1, 161 N. W. 281; Reid v. Ehr, 36 N. D. 552, 162 N. W. 903; Wagoner v. Bodal, 37 N. D. 594, 164 N. W. 147. It is contended by defendant’s counsel that plaintiff was required to show by affidavits of its managing officers and its attorneys that at the time of the trial such officers and attorneys had no knowledge of Noon’s proposed testimony. True, it was incumbent upon the plaintiff to show that the evidence was newly discovered. The affidavits submitted, however, show that only three persons were present and participated in the conversation. One of these was the defendant. The other two make affidavit to the effect that they never mentioned such conversation either to plaintiff’s officers or attorneys, or to any person whatsoever. If these statements are true they establish almost to a certainty the fact that plaintiff’s managing officers and attorneys had no knowledge of the existence of such evidence at the time of the trial. It will be observed that the proposed testimony of Noon has a direct bearing upon the only question at issue between the parties. The issue was close, and the evidence sharply conflicting. In our opinion the question whether a new trial should be granted on the ground of newly discovered evidence was one peculiarly within the trial court’s discretion. Its determination must control, unless a clear abuse of [567] discretion is shown. No abuse of discretion appears, and the order must be affirmed. It is so ordered.