Cooper v. Vaughan

• Decision Date: 31 March 1913
• Citation: 155 S.W. 912
• Parties: COOPER v. VAUGHAN.
• Court: Arkansas Supreme Court

155 S.W. 912

COOPER v. VAUGHAN.

Supreme Court of Arkansas.

March 31, 1913.

Appeal from Circuit Court, Prairie County; Eugene Lankford, Judge.

Action by W. H. Cooper against Emmet Vaughan. Judgment for plaintiff. From a judgment setting aside the judgment, the plaintiff appeals. Affirmed.

At the September term, 1911, of the Prairie circuit court, appellant recovered a judgment against the appellee in the sum of $1,000. An appeal was taken, and the judgment below affirmed by this court. At the September term, 1912, of the Prairie circuit court, the appellee filed his petition, asking that the judgment be set aside and a new trial granted him upon the ground of evidence discovered after the term at which the former judgment was rendered, and after the decision of the Supreme Court affirming that judgment.

The appellee alleged in his petition that at the former trial W. H. Cooper testified that on or about the 1st of May, 1908, he was employed by Emmet Vaughan (appellee) to make an estimate of the Myer's Bend land, Vaughan agreeing to pay for his services the sum of $1,000; that while in the employ of Herman Romunder in January, 1908, and at his request, he made an estimate of the Myer's Bend land, knowing at the time that Romunder was on a deal for the same, and that three or four months after this he made the estimate for Mr. Vaughan and turned the same over to him at the time the duebill was executed or just prior thereto, the duebill being dated the 8th of May, 1908; that Cooper's testimony was corroborated by the deposition of Herman Romunder as to the number of acres of land, date of estimate, etc., he stating that the estimate was received through the office at Des Arc some time in January, 1908; that at the time he received said estimate he was negotiating with Vaughan for the land; that the first estimate he received did not contain any estimate of the lands west of White river, but only the Myer's Bend land; that the first estimate was received about two months prior to the second estimate, the second estimate being received in April or May, but that he thought his correspondence would show; that from a review of the testimony of W. H. Cooper and the deposition of Romunder it would be seen that the testimony of Cooper was based on the deposition of Romunder, and that W. H. Cooper's inspiration of another estimate of this land evidently grew out of the deposition of Herman Romunder; that, on the other hand, petitioner denied that said Cooper was ever employed by him to make an estimate of the timber referred to in Cooper's testimony; that the $1,000 for which Cooper sued him was for an estimate made by Cooper for Herman Romunder, the said estimate covering 1,900 acres, which included the Myer's Bend land and the land west of White river; that since the judgment of the Supreme Court was rendered Romunder had discovered a letter written by himself to Cooper, which showed that he (Romunder) was mistaken in his testimony at the former trial, in which he testified from memory that Cooper was in his employ in January, 1908, and made an estimate of the timber for him at that time, and that Romunder would now testify that Cooper only made one estimate of the timber, and that said estimate was made in May, 1908, and that said estimate embraced 1,900 acres of land, 761 acres of which lay on the east of White river, in Woodruff county, known as the Myer's Bend land, the balance of the land lying west of the river, in Prairie county, Ark.

The petition further set up that Romunder had discovered an expense account, dated June 1, 1908, showing that on May 1, and 2, 1908, W. H. Cooper had incurred expense for estimating timber on Raft creek (being the name of the place west of White river where the lands were estimated), said expense account being signed and O. K.'d by W. H. Cooper. He had also discovered the original estimate of the timber, headed "Myer's Bend Estimate," and "this side of Bayou Des Arc," said estimate embracing 1,900 acres of land, consisting of the Myer's Bend land and the land west of White river, signed by W. H. Cooper; that he had also discovered a letter from Cooper, dated May 10, 1908, making corrections in the estimate sent the preceding day. The petition further alleged that Cooper testified on the former trial that the duebill executed by Emmet Vaughan to him was for an estimate of nothing but the Myer's Bend land, and that this land was the only land he estimated for Vaughan. The petition set up a memorandum executed by Cooper at the time the duebill was executed, which reads as follows: "I agree that the duebill given me this date by E. Vaughan for $1,000 to be void if sale of land fails to go through." The petitioner alleged that the newly discovered evidence, above set forth, would show that the estimate was made for Romunder, and not for Vaughan, and was for the entire 1,900 acres of land; that the testimony shows that only the Myer's Bend land of 761 acres had been sold.

The petition further alleged as follows: "That the newly discovered evidence that has come to light since the verdict is material, and that in the former trial of said cause he used due diligence in preparing said cause, and that the said Herman Romunder was a nonresident of the state of Arkansas, and that in the taking of the depositions he requested of him to attach all correspondence and other instruments of writing relating to said deal, which the said Romunder promised to do, and that he made repeated demands for said correspondence, but that the said Herman Romunder stated that he could not locate the same, and refused to attach same to his said deposition. That he was unable to procure any of said correspondence until recently and since the verdict or opinion of the Supreme Court. That it was impossible for petitioner to have known what was contained in the correspondence which passed between Herman Romunder and W. H. Cooper, and that he did everything within his power to ascertain the nature and extent of the same, and to have the same made a part of his deposition. Petitioner further states that the above testimony in his opinion would have produced a different result in the trial of said cause, and that, if said verdict is permitted to stand, it will work an irreparable injury to said petitioner." The petition concludes with a prayer that the judgment be vacated, and that he be granted a new trial, etc.

A general demurrer was filed to the petition, which was overruled. Appellant answered, and among other things, after admitting the former suit and judgment, he denied that the newly discovered evidence was material; denied that it would have changed the result of the trial; set up that appellee was fully advised by the testimony of appellant in the former trial as to what this cause of action was and the testimony upon which he relied to sustain it; that there was on the first trial of said cause a hung jury, and that the cause was continued from term to term until finally it was tried and a judgment rendered in favor of the defendant (in this case). The answer then set up the following: "This defendant further states that Herman Romunder, one of the witnesses upon which plaintiff relies for newly discovered evidence, is and was at all times herein mentioned the president of the Buena Vista Veneer Company, an Arkansas corporation, with its offices at Des Arc, and that said Herman Romunder visited Des Arc as often as once a month from and after the 8th day of August, 1910, until the final hearing of said cause; that the said plaintiff was well acquainted with the said Herman Romunder, and saw and talked with him during his visits at Des Arc, and, being fully advised of the connection of this, defendant, both by the pleadings and this defendant's testimony, had ample opportunity and could, with the exercise of diligence, have discovered and ascertained before the trial and judgment the evidence which he now desires to have given by the said Romunder. * * * That this defendant denies that the said plaintiff could not have brought this newly discovered evidence forward at the time of the trial; denies that he used due diligence in preparing his cause for trial and in attempting to develop all the facts connected therewith; but avers the facts to be that the said plaintiff was guilty of laches and gross negligence in the preparation of his cause, and that by reasonable diligence the so-called newly discovered evidence could have been produced at the trial. And for another and further defense this defendant states that in his complaint so filed as aforesaid he charged and alleged that he had been employed by the said Emmet Vaughan to estimate the timber on certain lands known as the Myer's Bend land, and in said complaint particularly described and that for his services so rendered the said Vaughan was to pay him $1,000, when the land should be sold, and as evidence of all which the said Vaughan executed and delivered to this defendant a duebill for $1,000, and further alleged that he had made the estimate, that the land was sold, and that the money was due and unpaid. That the said Vaughan in his answer denied that he was indebted to the defendant $1,000, or in any...