Martin v. Ehrenfels

Catón, C. J. We see no objections to the evidence offered, of the relations formerly existing between the defendants when they resided in Europe. It is true, that these relations there may have had but a slight tendency to show that they were partners in Chicago, but we do not think it was so entirely irrelevant that the verdict should be set aside because it was admitted. When the larger note was offered in evidence, it was objected to, because of an alleged variance between it and the one declared on, which objection was overruled, and an exception taken. The record does not show that there was any variance, and the presumption is, that the objection was overruled because there was in fact no variance. The note offered should have been set out in the bill of exceptions, had there been any variance, so that we could have seen that there was a variance. The alteration in the other note was shown, by the testimony of Greenbaum, to have been made before it was executed. But even that note is not given in the record, so as to show that there had been an apparent alteration. There was a very considerable amount of conflicting testimony upon the fact of partnership. From the testimony, we think the jury would have been justified in finding either way. Perhaps the preponderance is in favor of the verdict. At any rate, we should not be justified in setting aside the verdict, because it is against the evidence. There were three classes of affidavits read in support of the motion for a new trial. We will first consider the affidavits of the jurors. The only tendency of these affidavits, is to impeach the conduct of the jury. For this purpose the affidavit of a juror cannot be received. Next are the affidavits of newly discovered evidence bearing upon the question of partnership, and this only of a circumstantial character. This is in the strictest sense cumulative evidence, upon a point to which a large amount of evidence had already been introduced upon the trial; and is not of itself of a conclusive and controling character. Such newly discovered evidence never affords grounds for a new trial. Newly discovered evidence upon a point to which testimony has already been given on the trial, must be positive and conclusive, and capable of definitely settling the point in controversy at once and conclusively, before it can justify the granting of a new trial. These affidavits do not even approach this standard. The remaining affidavits show, that upon another trial the defendants would be able to impeach the testimony of one of the plaintiff’s witnesses. This also is an insufficient ground for a new trial. The judgment must be affirmed. Judgment affirmed.