Petefish, Skiles & Co. v. Watkins

Mr. Justice Shope delivered the opinion of the Court: The controverted questions of fact are conclusively settled" by the judgment of the Appellate Court, and we are not permitted to consider, for that reason, many of the questions pressed upon our attention by counsel, in argument. It is, however, insisted, that the court erred in giving an instruction on its own motion, and in modifying the fourth of appellants’ series, and in the admission of testimony. The fourth of appellants’ instructions, as asked, told the jury, that before they could find for appellee, on his plea of payment, it must appear, by a preponderance of the evidence, that the note had been paid. And if appellee asserted that the note was paid by the money procured on the Taylor note, he must show, by a preponderance of the evidence, that the plaintiffs agreed with him to accept said Taylor note, or some note to he given, to apply in payment, of the note in suit. The court modified the same by adding: “Or that it (the Taylor note) actually was applied in payment of the note in question, at the time of its delivery.” If Elijah Watkins, at the time he delivered the Taylor note to appellants, directed its application upon the note in suit, appellants would be required to so apply it; or if it was agreed, as testified to by Elijah Watkins, between himself and the cashier of appellants, that it should be received and accepted by the bank in payment of the note in suit, appellants would be bound to so receive it. The instruction, as drawn, omitted this phase of the case clearly made by the evidence introduced hy defendant, and the modification was therefore proper. The instruction given hy the court on its own motion, was, in substance, that the points in controversy in. this case are: First, was, or was not, there an arrangement or understanding between the plaintiffs and the defendant, William Watkins, in connection with Elijah Watkins, that the note in evidence was given for a temporary purpose, and signed by William Watkins, as surety, until money could be borrowed elsewhere, and then such money should be applied on the note sued on, and the defendant, William, released. Second, when the Taylor note was delivered to Oliver (cashier of appellants) by Elijah, was it, or not, agreed between them that the Taylor note should be applied on the individual indebtedness of Elijah Watkins, etc., or was it agreed to he applied in payment of the note in suit, etc. The jury were then told, if they found the first proposition in the affirmative, their verdict should be for the defendant, William Watkins; and on the other hand, they were told, if they did not believe, from the evidence, there was such an arrangement or agreement as mentioned in the first proposition, and that Elijah consented to the application of the proceeds of the Taylor note on his individual indebtedness, the finding should be for the plaintiffs, on the plea of payment, notwithstanding William Watkins may have directed Elijah to apply the Taylor note on the note in suit, if the bank had'" no notice of such direction. If, upon the second proposition, they found, from the evidence,- that the Taylor note, at its delivery, was agreed to he applied on the note in suit, they should find for the defendant, whether the agreement mentioned in the first proposition existed or not. The first criticism is, that the jury were, by the first proposition, directed as to whether or not there was an understanding and agreement between the plaintiffs and the defendant, William Watkins, “in connection with Elijah Watkins,” that the note was given for temporary purposes, etc. If this was error,. it is clear it is one of which appellants can not complain. Manifestly, such an arrangement, if made between the plaintiffs and. William Watkins, would require the plaintiffs to receive the proceeds of the Taylor rióte and apply them upon the note in suit. And the fact that the court seemingly required that the arrangement should have been made between the plaintiffs, and William Watkins and another, thereby enlarging the burden of proof upon the defendant, William Watkins, could in no way have operated to the prejudice of appellants. It is also insisted the instruction is erroneous, in that the jury were thereby told that if they found affirmatively upon the first proposition, they should find for the defendant, notwithstanding they also might find that Elijah consented to the application of the Taylor note upon his individual indebtedness. This was not error, for if appellee was induced to execute the note in suit, and, subsequently, the Taylor note, under the arrangement and understanding in the first proposition mentioned, it would not be in the power of the plaintiffs, even with the consent of Elijah, lawfully to divert the proceeds of the Taylor note, and apply the same upon the individual indebtedness of Elijah Watkins, and thereby leave both of saidi notes outstanding against appellee. The only remaining criticism is as to that part of the instruction which told the jury, if they found that the Taylor note was, at its delivery, actually applied in payment of the note in suit, they should find for the defendant, whether there had been any previous arrangement or agreement, or not. Whether the Taylor note, or its proceeds, was received by appellants in payment and discharge of the note in suit, was a question of fact, which was properly submitted to the jury, under the instructions. The liability of appellee being that of surety, if the liability of his principal was discharged by appellants receiving the Taylor note, or its proceeds, in payment, the liability of appellee was extinguished. It is also insisted that the court erred in permitting appellee to testify that when he signed the Taylor note he handed it to said Elijah, to take to the bank, and told him not to give it up until he got the first note,—the note in suit. It may be conceded that this evidence could have no force, and it was stated by the court, in the instruction given on its own motion, that this evidence was entitled to no force, unless communicated to appellants, or they had notice of the direction thus given. Its admission, however, was not reversible error. In view of the facts, it can not be seen that it could have prejudiced appellants’ case, if inadmissible. The jury were fully and correctly instructed in respect of this matter. By appellants’ first instruction they were expressly told, that although they might believe, from.the evidence, that appellee “instructed and directed his son, Elijah, to take said Taylor note and mortgage to the bank of plaintiffs, upon the condition that plaintiffs cancel and deliver up the note in suit,” yet, unless it was shown, by a preponderance of the evidence, that there was an agreement by appellants that the Taylor note, etc., should be accepted by appellants as payment of the note in suit, the jury must find that it was unpaid, etc. It is also insisted that the court erred in overruling the motion for a new trial, predicated upon newly discovered evidence. It will be sufficient to say that the evidence alleged to be newly discovered related to declarations alleged to have been made by the defendant, William Watkins, in relation to his liability, etc., upon the note sued on. Aside from the fact that the witness who, it is alleged, would testify thereto, is so contradicted as to render it doubtful whether such declarations were made, the evidence, if admitted, would not be conclusive of the case, and is cumulative, merely, to evidence introduced by appellants at the trial. It is the general doctrine, that new trials will not be granted to enable a party to introduce evidence merely cumulative in character. (Schlencker v. Risley, 3 Scam. 483; Crozier v. Cooper, 14 Ill. 139; Shelly v.'Boland, 78 id. 438; Laird v. Warren, 92 id. 204; McCollom v. Indianapolis and St. Louis Railroad Co. 94 id. 534.) And if not conclusive upon the issue, a new trial will not be granted,—that is, the evidence must be of such character and importance in respect to the issue, that it satisfactorily appears that upon .a re-trial, with the newly discovered evidence, the result will be different, the rule being, that where the evidence sought to be introduced is cumulative, new trials will not be granted unless the evidence is decisive of the case, conclusively leading to a change in the result, and it must appear that the party •offering it has used due diligence for its discovery and production. Smith v. Shultz, 1 Scam. 490; Martin v. Ehrenfels, 24 Ill. 187; Chapman v. Burt, 77 id. 337; Hayes v. Houston, 86 id. 487; Wood v. Echternach, 65 id. 149. It is manifest the evidence here offered was not of the character indicated, and the motion for a new trial was properly •overruled. Finding no error, the judgment of the Appellate Court is .affirmed. Judgment affirmed.