Lee v. Braggman

162 N.W. 788, 39 S.D. 175, 1917 S.D. LEXIS 91

• Court: South Dakota Supreme Court
• Decided: July 5, 1917
• Docket: File No. 4139
• Status: Published

Opinions

WHITING, J.

[1-3] The only assignment of error which we deem it necessary to consider upon this appeal is one assigning as error the overruling of appellant’s motion for a 'new trial. Among other grounds this motion was made upon the ground of newly discovered evidence which- appellant could not with reasonable diligence have discovered and produced at the trial. Upon such a motion -the court should consider the whole case including the pleadings and the evidence as presented by the settled record, as these may w.ell aid it in determining whether the new evidence tendered would, if received, he liable to change the result, and they may also aid it in determining whether justice would probably be promoted by the granting of such motion.

Appellant sued to recover the alleged agreed rental value of certain farm lands leased by him to respondent, for which appellant-alleged respondent agreed to pay $5.50 per acre, or a total of $179; for 23 months’ rental of a house and land connected therewith, for which appellant alleged respondent agreed to pay a rental of $5 per month, or a total of $115; and -for $56, the alleged agreed value of -certain personal property which appellant alleged respondent purchased of him; in all a grand total of $350. Respondent, in an answer verified by himself, denied every allegation of the complaint and, as counterclaims, alleged that he worked for appellant between March 1, 19x4, and March 1, 1916, which work was of the reasonable and agreed value of' $350, no part of which had been paid; and that, through appellant’s stock, he had suffered damages, in the sum of $225, to his crop of corn grown on appellant’s land. After appellant had rested his case respondent sought, and, over appellant’s objection, there was granted to him, the privilege of amending his answer and, in place of alleging the damage to the corn as a counterclaim, of alleging an accord and satisfaction whereby appellant’s claim for rental of the farm land- and respondent’s claim for damages to ■the corn were offset and satisfied. Furthermore, after appellant had rested his case respondent, over appellant’s objection, was-allowed to amend- his answer and to allege that -he worked for appellant during the year 1913 as well as from March, 1914, to March, 1916. Although’ respondent had- sworn to an answer -denying every allegation of the -complaint, upon the witness stand he admitted that he rented. the corn land. He denied that he agreed to pay $5.50 an acre therefor. The clear preponderance of the evidence supports the complaint and also shows that was a reasonable’ rental. The evidence is undisputed that respondent rented and occupied the house for 23 months, and that he had the use of -the land connected therewith. Upon the witness stand he admitted that he rented the property and that he expected to pay some-rent therefor, but he testified that the house was so poor that the rental value thereof, together with that of the land connected therewith and a barn or shed thereon, was not worth to exceed' 50 cents a month. The evidence of an apparently disinterested witness places the rental value of the house alone at $5 a' month. We can hardly believe that respondent, for 23 months, summer' and winter, lived with his family in a house the rental value of which was but 50 cents per month. As above noted, respondent' pleaded a counterclaim for labor in the sum of $350. Upon the witness stand he testified in detail as to the number of days’ work he performed in each year, the l<md of work, and the value thereof, the total value -being less than $200. It thus appears that he verified a pleading that was false as an answer and .false as a counterclaim. Even if jurors overlook such matters, courts should' set their seal of disapproval on such practices. It behooves litigants to be honest with the courts which they expect to stand as their protection against the dishonesty of others.

[4, 5] Respondent swore that the date of the alleged accord and satisfaction was in the -month of February arid the place* appellant’s home. From the affidavits filed in support o'f the motion for new trial it appears that appellant could, upon a new trial, show by disinterested witnesses and beyond all possible question that he was away from his home -during the full month of February. While this -testimony would simply corroborate his own testimony given in relation to this matter, it would come from the lips of disinterested parties. Hence the court could not rightfully refuse a new trial on the ground that such evidence was cumulative. Sluman v. Dolan, 24 S. D. 32, 123 N. W. 72. But it is urged that this is not newly discovered evidence — that it is the recollection of forgotten testimony or forgotten witnesses. Strictly speaking this is undoubtedly correct, and, if the original pleadings had alleged - an agreement in accord and satisfaction, and that such agreement was entered into in February, -thus giving due notice of such claim, we would be in-cliried to agree that ap-pel-' lent had not given proper excuse for -the absence of such witnesses at the trial All rules of procedure should be reasonably applied. We think that, under the circumstances, appellant -could not be accused of neglect in not asking for such continuance.

[6] Appellant offered' to produce, upon the new trial, a wit-' ness who would swear that respondent had told him that the corn-was in fact of ño value. • It is tirged that this evidence would bé' merely cumulative. It is true that appellant and some of his immediate family swore to the value of said corn; but we think the 'rule announced in Sluman v. Dolan, supra, applies in kind while not perhaps in degree.

[7] As before noted, respondent, in his original answer, made no claim that he was entitled to- any pay for work done in 1913 and yet he was allowed, .after appellant had rested his case, to amend his answer and then offer proof .of such work. Appellant was not advised by the original answer that respondent would claim he had not been paid for work done in 1913, and did not come to court prepared to meet such claims, fíe did not have with him the checks which he had used in making payments to respondent during that year. It is true that he might have asked for a continuance to give him an opportunity to try to look up such checks. He did not do so but went upon the stand and, while he admitted that the respondent did work for him during that year, he testified that he had paid for such work and paid for it in part at least by checks. Since the trial he has found two checks drawn in favor of the respondent which he now produces and upon a new trial would testify were checks given to respondent in payment for the work done in 1913.

The verdict of the jury was in favor of the respondent in the sum of $150. To our minds such verdict was against the clear preponderance of the evidence, but inasmuch as this was a jury trial and every presumption must be resolved in favor of the verdict, we must presume that the jury disbelieved the appellant’s evidence and believed that of the respondent, although same was practically uncorroborated. But, while it might not be reversible error for the trial court to refuse ho set aside the verdict as unsupported by the evidence, it should have considered the motion for a new trial in the light of the whole record. We are of the opinion that, in view of such record, the trial court abused its discretion in refusing to grant a new trial.

The judgment and order appealed from are reversed.