Fredricksen v. Luthy
| Decision Date | 26 November 1951 |
| Docket Number | No. 7738,7738 |
| Citation | 238 P.2d 430,72 Idaho 164 |
| Parties | FREDRICKSEN et ux. v. LUTHY. |
| Court | Idaho Supreme Court |
W. Lloyd Adams and Mary Smith, Rexburg, for appellant.
Leonard O. Kingsford, Rexburg, for respondents.
Elizabeth Blackshaw was visiting in Salt Lake City, Utah, in the month of June, 1949. She had previously resided there. The plaintiffs at that time were residing in Salt Lake City, Utah.
It is contended by the plaintiffs that the plaintiff Hazel Fredricksen entered into negotiations with Elizabeth Blackshaw in Salt Lake City, Utah, on June 15, 1949 to purchase certain real property belonging to Elizabeth Blackshaw. The property was located in Rexburg, Idaho; it is further the contention of the plaintiffs that on that date it was agreed that the purchase price for the property would be $2,520 and that the plaintiffs made a down payment on that date to Elizabeth Blackshaw of $500 and took a signed receipt therefor from seller; it is further contended by plaintiffs that thereafter and on the 29th day of June, 1949, at the home of the plaintiffs in Salt Lake City, Utah, in the presence of Mrs. Fredricksen and her daughter, Edith Herrington, the balance of the purchase price was paid and a signed receipt therefor given by Elizabeth Blackshaw; likewise it is contended that at the same time and place, in the presence of Edith Herrington, Elizabeth Blackshaw signed a memorandum agreement prepared by Mrs. Fredricksen in duplicate, a carbon copy of which was introduced in evidence and is as follows:
'June 29, 1949
'I have received the sum of Twenty five hundred twenty dollars from Albert C. and Hazel Fredricksen as payment in full for my property located at 172 North 1st East, Rexburg, Idaho consisting of three room house and 100 ft. corner lot.
I agree to vacate this property and furnish clear title to same within six months time.
'signed
'Elizabeth Blackshaw 172--N--1st East Rexburg, Idaho.'
Later Elizabeth Blackshaw returned to her home in Rexburg, Idaho, where she died on the 13th day of September, 1949; the defendant was duly appointed administratrix of her estate.
Mrs. Fredricksen had never been in Idaho until after the purported agreement was made. On or about October 28, 1949, she came to Rexburg, Idaho and instituted an action in the Probate Court of Madison County seeking specific performance of the memorandum agreement. This action was later dismissed and the present action filed in the District Court of Madison County for specific performance of the contract.
The matter was tried before the court and a jury sitting in an advisory capacity. At the conclusion of the trial the court gave instructions to the jury and also submitted two interrogatories to them for answer. The interrogatories submitted were as follows:
'Did Elizabeth Blackshaw, on the 29th day of June, 1949, or at any other time, make, execute and deliver to the plaintiffs, or either of them, or to any person on behalf of the plaintiffs, or either of them, the written instrument set out in the plaintiffs' complaint?'
'Did the plaintiffs, or either of them, or did any person on behalf of the plaintiffs, or either of them, on the 29th day of June, 1949, or at any other time, pay to Elizabeth Blackshaw, or to any person on her behalf, the sum of $2,520.00, or any other sum, or thing of value, in payment of the purchase price of the real property described in the plaintiffs' complaint?'
The jury answered both interrogatories in the affirmative. The court then made findings of fact, conclusions of law and judgment for specific performance. Thereafter the defendant, appellant herein, moved for a new trial, which was denied. This appeal is taken from the order of the district court denying the motion for a new trial.
Included in the grounds specified in the notice of motion for new trial was newly discovered evidence material to the defendant which could not with reasonable diligence have been discovered and produced at the trial. There were other grounds set forth and specified in the notice of motion for new trial which because of the conclusions reached herein we consider unnecessary to discuss.
Trial courts possess discretion to be exercised wisely, in granting or denying a new trial, and such discretion will not be disturbed by the appellate court, unless it is clearly exercised unwisely and manifestly abused. Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430; Poston v. Hollar, 64 Idaho 322, 132 P.2d 142.
Appellate courts are more reluctant to interfere with an order granting a new trial than with an order denying a new trial; a much stronger showing is necessary to obtain a reversal where a new trial has been granted than in instances where it is denied. Poston v. Hollar, supra; MacDonald v. Ogan, 61 Idaho 553, 104 P.2d 1106; Clark v. Fazio, Or., 230 P.2d 553; 5 C.J.S., Appeal and Error, § 1619, page 522, Notes 83-84.
The general rule is that in order to warrant the granting of a new trial on the ground of newly discovered evidence, it is essential, among other things, that such evidence has been discovered since the trial and that it could not have been discovered before or during the progress of the trial by the exercise of due diligence. Friedman Bag Co. v. F. E. Baldwin & Co., 57 Idaho 607, 68 P.2d 43; Livestock Credit Corp. v. Corbett, 53 Idaho 190, 22 P.2d 874; Camas Prairie State Bank v. Newman, 15 Idaho 719, 99 P. 833, 21 L.R.A., N.S., 703; 39 Am.Jur. Sec. 159, p. 166.
The asserted newly discovered evidence is set forth in the separate affidavits of some six persons, one of whom resided in California, and by five persons who reside in Madison County, Idaho, the place where the trial was held, and the affidavit of one of the counsel for appellant.
The affidavit of counsel for appellant sets forth that on the day of the trial there came to his knowledge for the first time, new and important evidence for the defendant, the existence of which was unknown to the defendant at the time and before the trial, the said counsel was fully aware of the facts but was ignorant of the legal proof of such facts; such affidavit goes on to say that counsel made diligent inquiry and industriously endeavored to produce at the trial such evidence as is set forth in the respective affidavits of the other affiants, and that it was not until the day of the trial that the existence of such evidence came to counsel's knowledge; the affidavit sets out that on the day of the trial, which was concluded in one day, he learned that said Elizabeth Blackshaw consulted with one Emily Alvira Jensen, the affiant who resides in California, with reference to any business transactions, and that before she would make any decisions in connection therewith she would solicit and receive the advice of Mrs. Jensen; that following the trial counsel contacted Mrs. Emily Alvira Jensen, who advised him that she was authorized on or near July 7, 1949 by Elizabeth Blackshaw to negotiate a sale of her home in Rexburg, Idaho, and that Mrs. Jensen thereafter, accompanied by a real estate agent, John Tout, whose affidavit is filed in support of said motion and corroborates the statements of Mrs. Jensen, went to the Blackshaw residence for the purpose of listing the property for sale; that Mrs. Jensen also informed her brother, John Hoopes, to contact Miss Blackshaw late in August, 1949, for the purpose of aiding her in the sale of her property; affiant further sets forth in his affidavit a copy of original letter which Mrs. Jensen received from Elizabeth Blackshaw under date of August 11, 1949, with reference to the sale of her property, a copy of the pertinent portions of such letter being as follows:
'Mrs. Lorenzo Jensen
Dear Friend:
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