Keeler v. Jacobs

Pinney, J. 1. The material question under the evidence was whether the defendant, within a reasonable time, returned the machine or notified the plaintiffs that he would not keep it. Unreasonable delay would operate as an acceptance of it. What was a reasonable time for a trial of it was a question of fact for the jury (Benj. Sales, §§ 596,-597), and such the circuit court seems to have understood to be the law. Although the jury were told that it was for them “ to say, under all the circumstances of the case, whether there was an acceptance of the machine by the defendant, or whether he unreasonably delayed returning it or notifying the plaintiffs that he would return it,” yet the court had already instructed the jury that “ most assuredly, unless he had the right to keep that machine until the latter part of May because the plaintiffs told him he. might expect a new cable, the time would be too long,” and. that the length of time would be unreasonable unless he-had some excuse for keeping the machine up to that time by reason of assurances that a certain defect would be remedied. The instruction quoted was erroneous, because' it withdrew from the consideration of the jury a question which was peculiarly within their province, and particularly so in this case, and, so far as it left anything to the jury upon the question of reasonable time, it did so in subjection to the binding force of this absolute instruction. It was misleading, for the reason that the failure to get a^ new cable appears to have occurred in the early part of. [550] May, and there was testimony on the part of the defendant that he had already notified the plaintiffs that he did not want the machine, and that he had previously notified them that if he got a new rope he would keep it, otherwise not; and that the plaintiff Keeler told him to keep it there, and he would write to the company. It is true that this was controverted by the plaintiffs. There was the use of the machine by Palmer, and its deposit soon after near the plaintiffs’ place of business, of which it seems they had notice, and there was the subsequent message sent to the defendant by his son, about July 4th, that if his father would take the machine they would throw off $5, and this was followed by the letter from the plaintiffs to the defendant of July 30th, from the tenor of which it seems that the plaintiffs had not understood that the defendant had certainly accepted the machine, for they seem to have asserted a claim for pay for its use. The effect of the instruction was practically to withdraw all this evidence from the jury, by holding, in substance, that the machine had been accepted by the defendant by the latter part of May, unless the plaintiffs “ told him he might expect a new cable, or assurances were given him that the defect complained of would be remedied.” There is no claim that any such promise was made or assurance was given. The most that occurred was that the plaintiffs were to write and see what the company would do about it. The case should have been submitted to the jury upon the entire evidence, including the conduct and acts of the parties, to say whether the defendant had accepted the machine, and whether, under all the circumstances, there had been, within a reasonable time, a refusal to accept it and a substantial return of the machine. 2. The motion for a new trial, on the ground of newly discovered evidence, ought to have been granted. We must assume, so far as the record shows, that the witness [551] Wilson, who swears in. his affidavit to the newly discovered facts, is a credible witness, and if so, in view of the testimony before us, it appears to us that the newly discovered evidence is highly important, and would probably produce a different result on a new trial. The objection that the newly discovered evidence is cumulative is not well taken. Evidence is cumulative which speaks of facts in relation to which there was evidence at the trial, or additional evidence of the same kind to the same point. If, as here, it relates to distinct and independent facts of a different character, though tending to establish the same ground of claim or defense, it is not considered cumulative, within the rule. Hilliard, New Trials, 501, 502; 1 Graham & W. New Trials, 490, 493; Wilson v. Plank, 41 Wis. 98, 99; Finch v. Phillips, 41 Wis. 393, 394; Goldsworthy v. Linden, 75 Wis. 24; Bigelow v. Sickles, 75 Wis. 430. In Goldsworthy v. Linden, supra, the remark to the effect that, for the purposes of the motion, such newly discovered evidence must be regarded as true, is, we think, stated too broadly. Certainly, as there stated, the facts cannot be determined upon affidavits, yet counter affidavits may be used to show whether the granting of a new trial on the ground of alleged newly discovered evidence would probably produce a different result upon another trial and be promotive of the ends of justice. Eor the reasons stated, the judgment of the circuit court must be reversed. By the Court.— The judgment of the circuit court is reversed, and the case is remanded for a new trial.