Baumgarten v. Hoffman

Mines, J.: This action was brought to recover the price of a suit [339] of clothes. The testimony upon the trial was conflicting. Plaintiff claims that the suit was ordered at' the price of ■$45; and was to be ready for delivery on the 4th day of, July; that on the 3d day of July,'about 3 o’clock in the afternoon, defendant came to his shop, and was informed the clothes would be ready for delivery about 5 or 6 o’clock that evening. Defendant wished the clothes sent to his room, so he could use them next day, and plaintiff declined to send them to his room unless first paid for, but said he would keep the store open so that the clothing could be had that evening. Defendant did not call for them at any time. A month or so later, plaintiff asked •defendant why he did not come and get the clothes, and he replied that he had not got any money at present, but would call as soon as he got the money. The goods were not called for, and after the expiration of two years, and after altering it over at some expense, the suit was sold for $25. The defendant introduced evidence tending to ■contradict this testimony. The jury found a verdict for the plaintiff in the sum of $20. The defendant moved for a new trial, founding his motion upon the insufficiency of the evidence to justify the verdict, and upon' newly-discovered evidence, based upon the affidavit of one B. B. Quinn, wherein he states that he purchased this suit from respondent and paid $45 for it. The plaintiff made a counter showing, wherein it appears that the pantaloons made for appellant were altered over, and, together with a coat and vest made for Mr. Vincent, were sold to Quinn for $45; and that deductions were made from the price of the goods. The motion was overruled, and defendant appeals from the order overruling his motion for a new trial, and from the judgment. The testimony offered on the trial was conflicting. The yury found the issues for the plaintiff. There was sufficient evidence to justify the verdict, and the judgment should [340] not be disturbed on that ground. Nor do we think the newly-discovered evidence was of such a nature as to seriously affect the result if it had been known at the time, and admitted. The facts stated 'in the affidavit of Quinn are not inconsistent with those stated in the affidavit of Baumgarten, and the latter clearly explains the former, and tends to sustain the testimony given on the trial where respondent claims a loss of $20 because of the failure of the appellant to complete his contract and pay for the goods ordered. A new trial should not be granted upon the ground of newly-disco-vered evidence unless such evidence is very clear and satisfactory, and likely to seriously affect the result if admitted. People v. Sackett, 14 Mich. 325; Tiernan v. Trewich, 2 Utah, 393; Hopkins v. Ogden City, 5 Utah, 390, 16 Pac. Rep. 596. We find no error in the record. The judgment of the district court is affirmed. BARTCii, J., and Smith, J., concurred.