W. T. Rawleigh Co. v. Pierce

102 A. 96, 92 Vt. 44, 1917 Vt. LEXIS 290

• Court: Supreme Court of Vermont
• Decided: October 2, 1917
• Status: Published

Opinion

Powers, J.

The new trial here sought cannot be granted. It appears that the plaintiff, a non-resident corporation, brought a county court suit against; the defendants therein seeking to recover on an instrument of indemnity purporting to be signed by them as guarantors of one Thompson. To that suit the defendants pleaded the general issue and gave notice under the rule that they should deny their signatures to the instrument sued on. A trial was had by the court and judgment was for the defendants. At that trial the one important question was, did the defendants sign the contract in question? They admitted that they signed a paper at Thompson-’s request, but denied that it was the guaranty in suit or anything like it — insisting that it was a mere endorsement of Thompson’s honesty, and that it had the word “Recommendation” printed across its top. •

Properly construed the application here made is based upon newly discovered evidence. So far, then, as we need state the rule, the plaintiff must make it appear that the evidence relied upon is, in fact, newly discovered; and that it could not, with reasonable diligence, have discovered and produced it at the trial.

The plaintiff fails on both grounds. It deliberately chose to go .to trial without being present by its officers and agents and' without putting its counsel in possession of all the material facts within its knowledge. But it is said that its counsel was taken by surprise; that the claim that there was another paper was wholly unexpected, and that evidence can now be produced to refute this claim.

But the claim appeared in the early stages of the trial, during the examination of the very first witness, when it was unequivocally stated by defendant’s counsel that the defence was that “it was another paper was signed there.” The defendants had done all that they were required to do to appraise the plaintiff of their defence, by the notice above referred to. It was not necessary for them to go into details or recite the evidence on which they were to rely. The evidence in question may have been unexpected, but it affords no basis for granting a new trial on the ground of surprise.

Nor does it affect the question of diligence. Had the secretary of the plaintiff been present at the trial, this unexpected development could not have injuriously affected the plaintiff. No continuance, or delay was asked for by the plaintiff, and the fact that counsel did not know of the evidence which the secretary could give does not affect the situation, since it was the plaintiff’s fault that counsel were left thus uninformed. So far as surprise is involved, the case is within the spirit of Hemmenway v. Lincoln, 82 Vt. 465, 73 Atl. 1073.

Nor can it be said that the evidence relied upon is, in a proper sense, newly discovered. The plaintiff’s secretary says that no blank of the kind described by the defendants was in use by it or furnished to Thompson. The plaintiff’s auditor and collector says that he called upon the defendants before the original suit was brought, showed them the guaranty, talked with them about their liability, and that they did not then deny their signatures. These facts, being ascertained by the officers and agents of the plaintiff while acting for it within the scope of their authority and being pertinent to the matters then in hand, became, by imputation, known to the plaintiff itself. 10 Cyc. 1054. See Bank v. Brigg’s Assignees, 70 Vt. 594, 41 Atl. 586; Roberts v. Hughes Co., 86 Vt. 76, 83 Atl. 807. It is the importance of this evidence and not the evidence itself that is newly discovered.

The situation in which the plaintiff finds itself is wholly due to its voluntary action in choosing to risk a trial without being present by such of its officers and agents as had to do with the transaction involve*!

Stay vacated, and petition dismissed %vith costs.