Skillman v. Leverich

Martin, J., delivered the opinion of the court. The plaintiffs state, that Armor sent to the defendant for sale, on his account, a quantity of bagging, bale rope, and twine; and being indebted to the plaintiffs, he transferred to them his claim on the defendant for the net proceeds of these goods ; and he, having received notice of this transfer, transmitted to the plaintiffs an account óf sales, which is the basis of the present suit. The defendant pleaded, that he had fully paid to Armor, or to the plaintiff, by the order of Armor, whatever was in his hands from the sale of the above goods; and prescription. There was a verdict and judgment against him, and he appealed, after an unsuccessful attempt to obtain a new trial. Our attention is first drawn to a bill of exceptions taken by [520] his counsel to the opinion of the court, overruling his objections to the introduction in evidence of certain letters of his, offered in order to rebiit his own testimony, on the ground ^lat afforded no rebutting evidence, and were introductory of new matter; that the defendant was taken by surprise, and could have destroyed the effect of these letters, if he had known that they were (to have been introduced. A parly can-the introduction^ ters in evidence, thnony.ttln'bííey denoewWoheañ be offered a-him. A party who unexpected*evi dence, although lie cannot object to it; win be re-fidavit,°upon an new'trial011 f<>1 a It appears to us, that the court did not err. The party’s own letters are the best evidence which can be offered against him, and tha¿ of which he has the least reason to complain. i A party who is surprised by unexpected evidence, although cannot object to it, will be relieved on his affidavit, upon an application for a new trial. The defendant does not , appear to have sought redress in this way. On the merits, the plaintiff’s claim was established. The defendant complains that he was not allowed a deduction for . , . r certain Hems of the account, which he was not able to collect; and for a payment alleged to have been made to mor’ ^ ^oes not aPPear to us that the jury erred in disallowing the deduction claimed. The defendant introduced no proof of any effort to collect the sums which he alleged to have been lost; and the testimony by which the alleged payment was attempted to be proven, was, in our opinion, correctly considered by the jury as unsatisfactory. The plea of prescription is unsupported. It is, therefore, ordered, adjudged arid decreed, that the judgment of the District Court be affirmed, with costs.