Collins v. Bacon
| Decision Date | 03 April 1905 |
| Citation | 80 P. 268,38 Wash. 80 |
| Parties | COLLINS v. BACON et ux. |
| Court | Washington Supreme Court |
Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.
Action by H. W. Collins against William T. Bacon and wife. Judgment for defendants. Plaintiff appeals. Affirmed.
Crow & Williams, for appellant.
Graves & Graves, for respondents.
This action was brought to recover upon a promissory note alleged to have been executed by the respondent Wm. T. Bacon in favor of the appellant. The answer denied the execution of the note, and on this issue the case was tried to a jury, which returned a verdict in favor of the respondent. The appellant moved for a new trial on the ground of newly discovered evidence, which motion the trial court overruled. Judgment was entered on the verdict, and this appeal is taken therefrom.
Two errors are assigned for reversal: First, that the evidence is insufficient to justify the verdict; and, second, that the appellant was entitled to a new trial on the ground of newly discovered evidence.
The first question is purely one of fact, on which we find, from a perusal of the record, there was a substantial conflict in the evidence. This court has uniformly held that, where there was a substantial conflict in the evidence, we would not disturb the verdict of the jury, notwithstanding we might feel, from our study of the evidence, that its weight was with the other side. So, in this case, as the jury made its finding upon substantial evidence we are bound by their verdict.
The newly discovered evidence shown in the affidavits filed in support of the motion for the new trial consisted of entires in the appellant's books, and books to which he at all times had access, which contradicted statements made by the respondent Wm. T. Bacon while on the stand as to certain business dealings which had theretofore taken place between the parties. Aside from the fact that this could hardly be said to be newly discovered evidence, we think the appellant was at fault in not having the books at the trial. He was advised by the answers of the respondents in advance of that time as to what their defense was going to be, and common prudence would have dictated that he have present at the trial all of his evidence bearing upon the issues made by the pleadings. His showing was plainly insufficient under the rule announced by this court in Pincus v. Puget Sound Brewing Co., 18 Wash....
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