Rice, J.,
delivering the opinion of the court:
The court gave some consideration to this matter at the noon recess, anticipating the probability of the motion now made. The plaintiff contends the writing introduced to be sufficient evidence of a loan by the plaintiff to the decedent and further that there is other evidence in the case, explanatory of the circumstances surrounding the giving of the paper, sufficient to remove any doubt as to the paper representing a loan, and therefore the motion should not prevail.
[1,2] After considering the evidence in the case as we remember it to be, it seems to us that there is no legal evidence here of a nature that we can consider as explaining the circumstances surrounding the giving of the paper writing to establish the fact that it did represent a loan. It is true that the plaintiff has testified concerning his conversation with an officer of the trust company, in which he stated that the paper represented a loan to Mr. Forbes, but that statement cannot be considered as evidence of the loan, being contrary to the terms of the statute which provides that in actions by or against administrators, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator or intestate. Revised Code 1893, page 798.
[238]*238The question at this point appears to be if the court submitted the case to the jury for their consideration and decision, whether they would be justified in finding, from the written instrument alone, that it represented a loan by the plaintiff to the deceased.
We are of the opinion that such a verdict by the jury would not be justified in this case by the evidence, and we believe that it would be as reasonable to find that the paper represented a receipt for money to be used in a joint undertaking between the two parties, and a verdict found in favor of the plaintiff would be mere speculation on the part of the jury that it was a memorandum of a loan.
There is not sufficient evidence to submit the case to the jury for their determination and while the court is always reluctant to do so, yet we are constrained, under the circumstances, to grant a nonsuit in the present case.
Mr. Chandler:—I decline to take a nonsuit.
Mr. Ward:—I move that the court give binding instructions to the jury to return a verdict for the defendant.
charging the jury:
Gentlemen of the jury:—For the reasons we have assigned in granting the nonsuit, we direct you to find a verdict for the defendant.
Verdict for the defendant.
The plaintiff, at the same term, moved for a new trial and in arrest of judgment, and assigned the following reasons therefor:
(1) That the verdict was against the law; and (2) that the verdict was against the evidence.
Accompanying the reasons was an affidavit of the plaintiff, alleging:
First. That he was taken by surprise by the testimony of Mrs. Elizabeth Hobbs, who upon the witness stand testified that her knowledge of the money lent by plaintiff to defendant’s intestate was gained from plaintiff; while it is a fact that said witness on Monday next before the trial informed plaintiff in the presence [239]*239of his attorney, Mr. Chandler, that in July, A. D. 1906, she heard Samuel D. Forbes aforesaid say: “I owe Green (the plaintiff) one thousand dollars and I will pay him every cent of it, I am an honest man and will pay every cent I owe.”
Second. That since the trial of the above cause your plaintiff has discovered that one George W. Stevenson, living'near Reading, State of Pennsylvania, has stated to plaintiff’s informant, that said Samuel D. Forbes, in the spring of A. D. 1904, told him that he had borrowed one thousand dollars from your plaintiff and intended to use it in buying machinery for the ‘‘Fleetwood operations”, and your plaintiff verily believes that he can produce said witness to so testify at the next term of this court, should your plaintiff be permitted a new trial of this cause, and your plaintiff further says that he will make every effort to secure said Stevenson, whose whereabouts he could not ascertain until November twenty-sixth inst. and plaintiff believes he will so testify.
Third. That your plaintiff was surprised that certain letters , of said Samuel D. Forbes to your plaintiff were not offered in evidence by his attorney, Mr. Chandler, but has learned since the trial that his attorney mislaid said letters and forgot all about them, and your plaintiff verily believes that it would produce a different verdict, should these letters be produced to the court and jury, and should a new trial be granted; and your plaintiff attaches hereto the aforesaid letters.
Mr. Chandler, in support of his'motion for a new trial, relied upon the cash of Fitzgibbons v. Kinney, 3 Harr. 74. Mr. Ward, for defendant, in opposing the motions, urged that the affidavit filed did not support the reasons alleged in the motions for a new trial and in arrest of judgment, which reasons had practically been abandoned by counsel for plaintiff in h¿s argument. That if Mrs. Hobbs should be recalled, she could not alter her testimony, and no reasons for a new trial could be based upon the proposition that Mrs. Hobbs having sworn one way upon the trial would very likely swear another way on a retrial.
As to the second allegation in the affidavit, that since the trial plaintiff has ascertained that there was such a person as George W. Stevenson, who would, if produced upon the stand, testify [240]*240that he heard Mr. Forbes make certain statements, Stevenson was not a man unknown to this plaintiff. The letters written by-Mr. Forbes and Mrs. Hartman to Mr. Green, when Mr. Green was in Fleetwood, mention Stevenson as a man familiar with Mr. Green, and the learned counsel for the plaintiff had these letters in his possession, even though he failed to use them at the trial. But does the affidavit set out a condition of things that would come within the rule of the court as to granting a new trial on the ground of after-discovered testimony?
McCrone’s Adm’r v. Eves, 3 Houst. 76, which I understand has been consistently followed by the court, holds that it is incumbent upon a person who asks for a new trial upon such ground, to satisfy the court, first, that the evidence has come to his knowledge since the trial, and, second, that it was not owing to the want of due diligence that he did not learn of it before the trial, and in the next place that it would probably produce a different verdict if a new trial should be granted. It does not appear by this affidavit with any certainty to this court that Stevenson knows anything like what is averred in this affidavit, or that he would testify to it if he were produced in court. All that is averred is that somebody told somebody else who told Green. It is third-handed hearsay. There is therefore nothing before the court that would constitute a basis of a reasonable judgment that he would testify to what is alleged in the affidavit, if he were here’.
Again, the name of Stevenson is mentioned in these letters, which my learned friend has produced as part of his affidavit, as a man familiar with the situation at Fleetwood, and naturally as Mr.
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Rice, J.,
delivering the opinion of the court:
The court gave some consideration to this matter at the noon recess, anticipating the probability of the motion now made. The plaintiff contends the writing introduced to be sufficient evidence of a loan by the plaintiff to the decedent and further that there is other evidence in the case, explanatory of the circumstances surrounding the giving of the paper, sufficient to remove any doubt as to the paper representing a loan, and therefore the motion should not prevail.
[1,2] After considering the evidence in the case as we remember it to be, it seems to us that there is no legal evidence here of a nature that we can consider as explaining the circumstances surrounding the giving of the paper writing to establish the fact that it did represent a loan. It is true that the plaintiff has testified concerning his conversation with an officer of the trust company, in which he stated that the paper represented a loan to Mr. Forbes, but that statement cannot be considered as evidence of the loan, being contrary to the terms of the statute which provides that in actions by or against administrators, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator or intestate. Revised Code 1893, page 798.
[238]*238The question at this point appears to be if the court submitted the case to the jury for their consideration and decision, whether they would be justified in finding, from the written instrument alone, that it represented a loan by the plaintiff to the deceased.
We are of the opinion that such a verdict by the jury would not be justified in this case by the evidence, and we believe that it would be as reasonable to find that the paper represented a receipt for money to be used in a joint undertaking between the two parties, and a verdict found in favor of the plaintiff would be mere speculation on the part of the jury that it was a memorandum of a loan.
There is not sufficient evidence to submit the case to the jury for their determination and while the court is always reluctant to do so, yet we are constrained, under the circumstances, to grant a nonsuit in the present case.
Mr. Chandler:—I decline to take a nonsuit.
Mr. Ward:—I move that the court give binding instructions to the jury to return a verdict for the defendant.
charging the jury:
Gentlemen of the jury:—For the reasons we have assigned in granting the nonsuit, we direct you to find a verdict for the defendant.
Verdict for the defendant.
The plaintiff, at the same term, moved for a new trial and in arrest of judgment, and assigned the following reasons therefor:
(1) That the verdict was against the law; and (2) that the verdict was against the evidence.
Accompanying the reasons was an affidavit of the plaintiff, alleging:
First. That he was taken by surprise by the testimony of Mrs. Elizabeth Hobbs, who upon the witness stand testified that her knowledge of the money lent by plaintiff to defendant’s intestate was gained from plaintiff; while it is a fact that said witness on Monday next before the trial informed plaintiff in the presence [239]*239of his attorney, Mr. Chandler, that in July, A. D. 1906, she heard Samuel D. Forbes aforesaid say: “I owe Green (the plaintiff) one thousand dollars and I will pay him every cent of it, I am an honest man and will pay every cent I owe.”
Second. That since the trial of the above cause your plaintiff has discovered that one George W. Stevenson, living'near Reading, State of Pennsylvania, has stated to plaintiff’s informant, that said Samuel D. Forbes, in the spring of A. D. 1904, told him that he had borrowed one thousand dollars from your plaintiff and intended to use it in buying machinery for the ‘‘Fleetwood operations”, and your plaintiff verily believes that he can produce said witness to so testify at the next term of this court, should your plaintiff be permitted a new trial of this cause, and your plaintiff further says that he will make every effort to secure said Stevenson, whose whereabouts he could not ascertain until November twenty-sixth inst. and plaintiff believes he will so testify.
Third. That your plaintiff was surprised that certain letters , of said Samuel D. Forbes to your plaintiff were not offered in evidence by his attorney, Mr. Chandler, but has learned since the trial that his attorney mislaid said letters and forgot all about them, and your plaintiff verily believes that it would produce a different verdict, should these letters be produced to the court and jury, and should a new trial be granted; and your plaintiff attaches hereto the aforesaid letters.
Mr. Chandler, in support of his'motion for a new trial, relied upon the cash of Fitzgibbons v. Kinney, 3 Harr. 74. Mr. Ward, for defendant, in opposing the motions, urged that the affidavit filed did not support the reasons alleged in the motions for a new trial and in arrest of judgment, which reasons had practically been abandoned by counsel for plaintiff in h¿s argument. That if Mrs. Hobbs should be recalled, she could not alter her testimony, and no reasons for a new trial could be based upon the proposition that Mrs. Hobbs having sworn one way upon the trial would very likely swear another way on a retrial.
As to the second allegation in the affidavit, that since the trial plaintiff has ascertained that there was such a person as George W. Stevenson, who would, if produced upon the stand, testify [240]*240that he heard Mr. Forbes make certain statements, Stevenson was not a man unknown to this plaintiff. The letters written by-Mr. Forbes and Mrs. Hartman to Mr. Green, when Mr. Green was in Fleetwood, mention Stevenson as a man familiar with Mr. Green, and the learned counsel for the plaintiff had these letters in his possession, even though he failed to use them at the trial. But does the affidavit set out a condition of things that would come within the rule of the court as to granting a new trial on the ground of after-discovered testimony?
McCrone’s Adm’r v. Eves, 3 Houst. 76, which I understand has been consistently followed by the court, holds that it is incumbent upon a person who asks for a new trial upon such ground, to satisfy the court, first, that the evidence has come to his knowledge since the trial, and, second, that it was not owing to the want of due diligence that he did not learn of it before the trial, and in the next place that it would probably produce a different verdict if a new trial should be granted. It does not appear by this affidavit with any certainty to this court that Stevenson knows anything like what is averred in this affidavit, or that he would testify to it if he were produced in court. All that is averred is that somebody told somebody else who told Green. It is third-handed hearsay. There is therefore nothing before the court that would constitute a basis of a reasonable judgment that he would testify to what is alleged in the affidavit, if he were here’.
Again, the name of Stevenson is mentioned in these letters, which my learned friend has produced as part of his affidavit, as a man familiar with the situation at Fleetwood, and naturally as Mr. Green was up there he would know before going to the trial that Stevenson knew about the case; at least the affidavit implies that these letters were in his possession. Therefore there has been no reasonable effort on the part of plaintiff’s counsel before the trial to find out what Stevenson knew. If there is anything demonstrated upon the face of these letters, it is that this was not a loan or at least it appears that so far as these letters have any bearing upon the question as to whether it was a loan, there is an indication that Mr. Green was an investor in the Fleetwood proposition.
[241]*241This paper says: “December 1st, 1903. Received of Harry E. Green at different times up to this date, one thousand dollars to be used in developing of the Paint and Clay Business near Fleet-wood, Penn.,” etc. On the face of that paper there is not only no evidence of a loan, but so far as it means anything it means that Mr. Green invested that sum of money in that business, because this is not an acknowledgment of an indebtedness, but simply a receipt for money, which, so far as the paper itself shows, was an investment on the part of Mr. Green. Certainly these letters can have no bearing upon the question of repayment of, or of any obligation to pay, this money.
[3] Counsel for the plaintiff in his argument of the reasons filed in support of the motion for a new trial, has practically abandoned the two general reasons and relies upon the affidavit filed by his client. The first reason as given in the affidavit is the fact that Mrs. Hobbs’ testimony was different from what plaintiff’s counsel had expected it would be. Our recollection however, is quite clear on the point that the witness, Mrs. Hobbs, testified both in her direct examination (which by leave of the court was conducted upon the point as a cross examination) and in her cross examination by Mr. Ward, that the information regarding the loan of money to Mr. Forbes by Mr. Green was received from Mr. Green. So that we feel that her testimony is to a certain effect in this case, and that it would not help the plaintiff in any way if at this time, her testimony should be given again, because she has already given her testimony fully on the point to which reference is made in the affidavit.
[4, 5] The next question is concerning the letters. From an examination of the letters, it seems to the court that they are more consistent with the theory of what might be called a scheme or joint undertaking between the plaintiff and the deceased Forbes, than they are with the theory of a loan as contended by the plaintiff. At all events the letters were in the possession of the plaintiff’s counsel, and as he was from time to time during the trial in consultation with his counsel, if he believed the letters to [242]*242be important in establishing his. case it was his duty at that time to call his counsel’s attention to them.
[6, 7] In respect to Mr. Stevenson, whose name is mentioned in the letters, which were in the possession of counsel, the plaintiff cannot deny that he had some information concerning Mr. Stevenson and under the circumstances it was a burden on him to know if Stevenson could give testimony helpful to him in establishing his case, besides from the affidavit it does not appear that if Stevenson was produced as a witness .that his testimony would be such as the plaintiff claims.
We feel that substantial justice was done in this case upon the evidence submitted, and from such letters as have been presented since that time, and we are firmly of the opinion that from anything alleged-in the affidavit or from the special reasons filed, that there is nothing upon which the court could base the granting of a new trial. We therefore must refuse the application and deny the motion.