Brown v. Speyers
| Decision Date | 20 January 1871 |
| Citation | 61 Va. 296 |
| Parties | BROWN v. SPEYERS. |
| Court | Virginia Supreme Court |
Joynes J., absent, sick.
1. It is an established rule of the courts to grant new trials very rarely, upon the ground of after discovered evidence; and never but under very special circumstances. The party asking for it must show he was ignorant of the existence of the evidence, and it must be such that a reasonable diligence on his part would not have secured it at the former trial; that the new evidence is not of like import with any part of that offered on the former trial. He must produce the affidavits of the witnesses, stating the facts they will testify to, or if that be impracticable, the affidavits of persons who have conversed with them, showing the facts they will state.
2. A new trial will never be granted on the ground of after-discovered evidence, if it appears that the evidence might, with reasonable attention and diligence, have been procured before the first trial; nor when the affidavit states only that a person had told a party what he would say nor when the evidence does not relate to new facts, but consists merely of cumulative facts or circumstances relative to the same matter controverted at the former trial.
3. That is not a contract of wager, by the terms of which all the profit or loss is to be on one of the parties.
4. Contracts for the sale and purchase of gold are not void as against public policy.
This was an action of assumpsit in the Circuit court of the city of Richmond, brought in December, 1868, by Albert Speyers, a gold broker of New York, against A. Vance Brown, to recover the amount of commissions due to, and losses sustained by the plaintiff, upon purchases and sales of gold which he alleged he had made for Brown. The declaration contained only the money counts. The only evidence introduced on the trial was the depositions of the plaintiff and the defendant, and the copies of accounts and letters filed with the depositions; and on the 16th of February, 1869, the jury found a verdict in favor of the plaintiff for $1,043 08, with legal interest from the 1st of April, 1867, till paid; upon which the court rendered a judgment.
On the 10th of March, during the same term of the court, Brown moved the court for a new trial; but the court overruled the motion, and he excepted. On the 15th of March the exception was presented to the court. It embodied the evidence given on the trial, and also the affidavits of the defendant and of Hamilton G. Fant. The affidavit of the defendant stated that he had discovered new and material evidence, the existence of which was unknown to him before the trial, and which, by no diligence, he could possibly have discovered before said trial; and which evidence would, in his opinion, if it had been introduced on the trial, have produced a different verdict, viz: that the transactions which formed the subjects of said suit were fraudulently conducted by said Speyers, and that the sales and purchases of gold, alleged to have been made by Speyers for the defendant, were not real and bona fide sales and purchases; but, on the contrary, were collusive and fictitious; and that the same identical lots of gold, alleged to have been sold by him, were, in point of fact, sold on account of various persons at the same time and that the same identical lots of gold were in like manner purchased on account of various persons at the same time other than the defendant; so that the defendant was charged with commissions and losses on transactions which were not really and bona fide made on account of the defendant, or for his benefit; and that the knowledge of these facts only became known to the defendant on Wednesday the 17th instant, two days after said trial was had; and that the names and residences of the witnesses by whom these facts can be proved were not ascertained by him before the said trial, and could not have been ascertained by him before, in consequence of the fact that the said transactions were had in a distant city, viz: New York, where also the said witnesses reside; and that the knowledge of said facts and the names of said witnesses were learned by him by means of an interview with one of the said persons, which was brought about by an accidental circumstance that occurred after the trial; that the circumstances under which he became apprised of the above-mentioned facts were wholly accidental; and that no amount of effort or diligence, or the use of any ordinary means of enquiry within his power, would have enabled him to have ascertained the existence of the same at any time prior to the trial of the cause.
Fant in his affidavit, says: I have read the above affidavit of A. Vance Brown, and I have reason to believe that if a new trial is granted to Mr. Brown he will be able to establish the facts mentioned by him as to the purchases and sales of gold referred to by him in said affidavit.
The defendant, in his deposition, which was read on the trial and made a part of the bill of exceptions, after stating that a letter written by him and made a part of the deposition of the plaintiff, was written from Chicago before he had received an account from the plaintiff, says that on his way back to Richmond he telegraphed twice to the plaintiff, to know why he had exceeded his instructions, and instructed him at the same time to sell what he had bought; to which telegrams he received evasive replies from the plaintiff. That soon after his return to Richmond he compared the above-mentioned telegrams with similar telegrams that had been received by another party, Mr. H. G. Fant, for whom the plaintiff was at the same time acting as broker, and that the comparison of the two at once impressed the defendant with the idea that a fraud had been practiced by the plaintiff, in this, that the sales and purchases reported in the said account current were not real and bona fide transactions; and that the plaintiff, who was an operator in gold on his own account, had made the transactions for himself, and had charged the losses to the defendant, and had also charged commissions for said transactions to defendant, as if said sales and purchases had been really and in good faith made by the plaintiff as broker for the defendant.
The court, in overruling the motion for a new trial, gave, as the grounds of his judgment, that the only witnesses introduced on the trial were the plaintiff and defendant, and their testimony was in direct conflict; and the court could not, therefore, certify the facts; and because the newly-discovered evidence is cumulative, and of the same character with that offered by the defendant himself. And the court certifies that, as to the affidavit of H. G. Fant, it appeared on the trial that he has given to the defendant information in relation to the matters testified to by the defendant on the trial. And the court certified, in relation to the sales of gold in the gold room in New York; that the party offering the gold never had the gold which he professed to sell in his possession, but at the time of delivery is expected to account for its then value.
Upon the application of Brown a writ of supersedeas was awarded to the judgment.
E. Y. Cannon, for the appellant.
The first point relied upon by the appellant is, that the evidence certified upon the motion for a new trial shows that the implied contract upon which the suit was brought in the court below was grounded on no actual consideration, but was a mere wager, and, as such, void under the provisions of law on that subject. See Code of 1860, chap. 142, sec. 2.
The second point relied upon by the appellant is, that it appears by the said evidence, as certified upon the said motion for a new trial, and in the certificate of the judge of the Circuit court, that at the time when the alleged sales and purchases of gold took place, which formed the pretended consideration of said contract, in point of fact no such sales or purchases were made, and the subject matter of said alleged sales and purchases had at that time no existence, actual or potential, and, therefore, according to a well-established principle of the law of sales, the alleged contract in relation thereto was in law void. And on this point I refer to the cases of Bryan v. Lewis, Ryan & Moody, R. 386, 21 Eng. C. L. 467; Robinson v. Macdonnell, 5 Maule & Sel. R. 228; Lunn v. Thornton, 1 Common Bench R. 379, 50 Eng. C. L.; Wood & Foster's Case, 1 Leonard R. 42.
The third point on which the appellant relies is, that the motion for a new trial, on the ground of after-discovered evidence, was improperly denied; and on this point I refer to the following cases: Simmons v. Fay, 1 New York, E. D. Smith R. 107; White v. State, 17 Ark. R. 404; Bronson v. Hickman, 10 Indi. R. 3; Nuckols' Adm'r v. Jones, 8 Gratt. 267; Hansburger v. Kinney, 13 Gratt. 511.
In reply to the brief of argument upon the part of the appellee, I submit:
First. That the point made by him, that the bill of exceptions in this case states the evidence of the witnesses, instead of the facts proved, in support of which proposition he cites the case of Bennett v. Hardaway, 6 Munf. 125, and other cases of the like character, has no application whatever to the present case. The motion for a new trial in this case was not based upon the ground that the verdict was contrary to the evidence, but upon the ground of after-discovered evidence, and upon the ground, further, that the verdict was contrary to law; and, for the purposes of this motion, it was not only competent, but proper, that all the evidence should be stated in the bill of exceptions, in order that the appellate court may determine the relevancy of the affidavits offered in support of the motion, and, also whether upon the...
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