O'Conner v. Duff

• Decision Date: 31 October 1860
• Citation: 30 Mo. 595
• Parties: O'CONNER, Defendant in Error, v. DUFF et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

30 Mo. 595

O'CONNER, Defendant in Error,

v.DUFF et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1860.

1. Where a surprise of a party on the trial of a cause results from a want of diligence on his part--as where he is surprised by the testimony of his own witness, from whom he had sought no information previous to the trial--the court will not be warranted in granting a new trial on the ground of surprise; the court should also be satisfied that the injury sustained could probably be repaired on a second trial.

Error to Hannibal Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

Gantt, for plaintiffs in error.

I. The court should have granted the motion for a new trial. (Wilson v. Branson, 8 Geo. 136; 3 Gra. & Wat. on N. T. 953; 9 Dana, 134; Levy v. Brown, 6 Engl. 16.)

Harrison, Dryden & Lipscomb, for defendant in error.

I. The court properly overruled the motion for a new trial. There was no surprise that would justify the granting of a new trial. The proceedings of the defendant from the beginning were marked by negligence. (See 12 Mo. 380; Gra. & Wat. N. T. 194.)

EWING, Judge, delivered the opinion of the court.

The question in this case arises on the motion for a new trial, founded on the alleged surprise of the defendants by the testimony of one of their witnesses, whose affidavit is filed in support of the motion.

The action is on an agreement, under which the plaintiff claims to have sold and delivered to Duff & Co. a number of scoop-carts for use on the Hannibal and St. Joseph Railroad, at a stipulated price. The plaintiff was the inventor and patentee of this article, residing at Cincinnati, and he alleges a contract with defendants for the purchase of twenty scoopcarts then in Peoria, Illinois, at eighty dollars each, and for plaintiff's charges as the patentee on thirty other scoop-carts, then in Cincinnati, at twenty-two dollars and fifty cents each; that these last were accordingly delivered at Cincinnati, and the other shipped from Peoria to Hannibal by request of Talcott, one of the defendants. The answer denied all the allegations of the petition.

Smith, a witness for the plaintiff, proved substantially the allegations of the petition, and detailed a conversation that occurred between the plaintiff and Talcott, one of the defendants, in which the plaintiff related to him the particulars of the agreement entered into with one Otis, representing himself as defendants' agent, and that Talcott assented to and approved of all that had been done by Otis, and said he knew that such a contract had been made by Otis for Duff & Co.; but added that they (the defendants) did not wish to have the carts at Peoria, but that if plaintiff would send the twenty carts that were there to Poage & Miller, at Hannibal, Duff & Co. would pay for them the eighty dollars each, on their arrival at Hannibal, and the charges of transportation. It was also proved by this witness that the carts ordered from Cincinnati, upon their arrival at Hannibal, were by defendants sent, a part to Smith & Otis, on the railroad, which were subsequently disposed of, and the remainder, fifteen in number, sent to the western end of the road. Levering, a witness for defendant, corroborated this statement, and testified that the carts sent to Smith & Otis were charged to their account as sub-contractors under Duff & Co., and the remainder were sent to John Corby at St. Joseph, also a sub-contractor. This witness, who was Poage & Miller's clerk, states also that defendants' clerk, Southack, informed him that they (defendants) had ordered a lot of scoop-carts from Peoria to Miller & Poage, for themselves, and requested witness to take charge of them when they arrived, and notify Duff & Co.; that they were shortly thereafter received, having been sent by plaintiff, and upon so informing Southack he replied it was all right, and witness was desired to take charge of them, which he did, and they were subsequently sold by Miller & Poage to pay charges.

Otis, (introduced by defendant,) by whose testimony they allege they were surprised, gives a detailed and circumstantial account of what took place between him and Duff, one of the defendants, in the course of which, after detailing what he stated to Duff as to the price, terms, &c., on which the carts should be purchased, testifies that thereupon Duff authorized him to contract with the plaintiff for one hundred carts on the terms stated by witness; that he was about leaving for Boston on business for defendants, and Duff directed him to make the purchase on his way; that before making it he concluded to buy but fifty instead of one hundred, thinking that number sufficient; and he entered into a contract with plaintiff, as instructed by Duff, for fifty carts, on terms which he states, and which are as averred in the petition; that the patentee's charges defendants were to pay plaintiff as soon as they disposed of the carts; and further agreed to take for defendants twenty carts at Peoria at eighty dollars each; that he made this contract with plaintiff at the instance of John Duff for John Duff & Co., and not on account of Smith & Otis. He corroborates other witnesses as to the disposition of the carts received from Cincinnati; that those sent to Monroe city were not used on the road; that he regarded the contract about the carts at Peoria as conditional, and that he expected...