Barsa v. Kator

• Decision Date: 20 September 1917
• Citation: 93 S.E. 613
• Parties: BARSA. v. KATOR.
• Court: Virginia Supreme Court

93 S.E. 613

(121 Va. 290)

BARSA.

v.KATOR.

Supreme Court of Appeals of Virginia.

Sept. 20, 1917.

Error to Circuit Court, Wise County.

Action by Antonio Kator against George W. Barsa.There was a verdict for plaintiff, and his motion for new trial being overruled, and judgment rendered in accordance with the verdict, defendant brings error.Reversed.

R. T. Irvine, of Big Stone Gap, for plaintiff in error.

Vicars & Peery, of Wise, and Morton & Parker, of Appalachia, for defendant in error.

SIMS, J.This case is an action of assumpsit by the defendant in error, hereinafter referred to as plaintiff, against the plaintiff in error, hereinafter referred to as defendant, seeking to recover a balance of $1,544.50, claimed by plaintiff to have been due him by defendant upon a correct settlement of accounts growing out of numerous transactions between them, extending through a period of about two years, during which the plaintiff claims to have paid over to defendant an aggregate of some $10,800.The plaintiff was engaged in the business of a peddler, for which the defendant furnished him credit, the latter buying goods from wholesale houses for plaintiff, turning over the goods to him from time to time as he needed them, and the plaintiff, as he came in from his peddling trips, turning over money in small sums to defendant; and there were certain deposits of money in bank by plaintiff to the credit of defendant, during an absence of defendant and also the purchase of a lot of land by defendant for plaintiff, and payments of purchase money therefor in installments, and there were other alleged transactions between them.

Both plaintiff and defendant are Syrians, and for the most part so were the witnesses in the case on its trial; the character and veracity of many of them being made the subject of question in the case.

There was a trial by jury, resulting in a verdict for the plaintiff for said sum of $1,544.50, which the defendant, at a subsequentterm, moved the trial court to set aside on the grounds of after-discovered evidence and of improper conduct of the jury.Affidavits were filed for and against such motion, and the court overruled the motion and entered judgment for the plaintiff in accordance with the verdict of the jury.This action of such court is made the sole assignment of error in the case.

A number of instances of after-discovered evidence are relied on to sustain said motion, as well as the alleged misconduct of the jury; but, in the view we take of the case, only the after-discovered evidence bearing upon one issue need be considered, and the other instances of alleged after-discovered evidence and the alleged misconduct of the jury need not be considered.

The incident upon which the after-discovered evidence which we will consider bears is that of the carrying away by plaintiff of goods from his room in defendants' apartments, partly by night and in a secretive way by day.These goods, if they were so carried away, were a portion of those obtained by plaintiff of defendant as aforesaid, and were in the hands of the former at the close of his transactions with the latter, and credit for their value should have been given by the plaintiff to defendant.Their value was claimed by defendant to be not less than $800 or $900.The plaintiff gave the defendant no credit whatever for any of such goods.In his testimony in the case on his first examination the plaintiff made no mention of his having or not having any goods on hand at the close of his transactions with defendant, stating the transactions between himself and the defendant, and the result of them, as if there were no goods whatever left in his hands at the close of such transactions derived by him from the defendant.In his testimony in the case, in his own behalf, the defendant first made mention of his claim that the plaintiff had on hand at the close of the transactions aforesaid such goods, and that he left defendant's home with such goods, of "not less than $800 or $900" value.Defendant in his testimony on this subject stated the bare fact that plaintiff left his house with such goods.Frank Carter, a witness for defendant, testified on this subject that he saw the goods in question before the plaintiff left the home of defendant; describes what kind of goods they were, fixed their value, in his judgment, and stated that the plaintiff"took two or three loads [the] day he moved out"; that witness was in defendant's home at the time; that the plaintiff"took the goods and went out, " witness staying in the house; "he come in and took the goods, and leave the room, and come back after another load"; that witness thought plaintiff took the goods to Mike Barsa's, but that he didn't know where he took them.

The plaintiff in rebuttal testified in effect that he had no goods whatever left in his hands as the result of the transactions between him and the defendant, and denied that he had any goods for some time afterwards until he got credit from another Syrian and began peddling in a small way, at first with two dozen hose, then, with some old country pictures.

The alleged after-discovered evidence, which we shall consider as aforesaid, consists, as shown by their affidavits, of testimony which will be given, if they are allowed to testify, by five witnesses, none of whom were witnesses on the trial of this case, namely, H. R. Stone, G. C. Young, F. M. Strong, a justice of the peace, F. A. Mahan, and Joe Hannie.Briefly stated, this testimony, in so far as it would bear on the issue of fact in question, would be, in effect, as follows:

Stone would testify that at the time in question, following the "split-up" between plaintiff and defendant, he saw the plaintiff"make several trips from George Barsa's"(the defendant)"to Mike Barsa's carrying a peddler's pack each time, which seemed to be filled as much as usual.On that occasion I saw him take several loads a day, and he then went along the alley immediately in the rear of the stores, and between the stores and the railroad.I also saw him take one or more loads in the nighttime from George Barsa's to Mike Barsa's along Main street, but whenever he went in the daytime he seemed to go the back alley."

Young would testify that at the time in question, "one night about 11 o'clock, "he saw the plaintiff pass "down the street in the direction of Mike Barsa's house with a big pack on his back."

Strong would testify: That at the time in question the plaintiff came into the place of business of F. A. Mahan, and he"heard Mahan say to him in substance that he ought to set up a store for himself, as he had plenty of goods, " and that plaintiff said: "I have got plenty of goods, but I don't want no store."That to a question of Mahan. which Strong thought was whether plaintiff was moving down to Mike Barsa's, the plaintiff answered, "Yes."

Mahan would testify that at the time in question plaintiff was in his butcher's shop, and told him that "he was going to-morrow and go down to Mike Barsa's, " and that affiant (Mahan) said to the plaintiff, "Toney, you seem to have plenty of goods; you ought to set yourself up a store;" to which the plaintiff replied, "I have got plenty of goods, but I don't want no store;" that plaintiff said he"was...