John M. Bradley v. Clarence B. Kelley & Trustee

• Decision Date: 03 October 1933
• Citation: 168 A. 554,105 Vt. 478
• Parties: JOHN M. BRADLEY v. CLARENCE B. KELLEY & TRUSTEE
• Court: Vermont Supreme Court

168 A. 554

105 Vt. 478

JOHN M. BRADLEY v. CLARENCE B. KELLEY & TRUSTEE

Supreme Court of Vermont

October 3, 1933

May Term, 1933.

Evidence---Parol Evidence as to Written Instrument---Harmless Error---Cross-examination---Discretion of Court---Evidence---Reason for Bringing One of Two Available Actions---Evidence Rendered Non-prejudicial by Subsequently Admitted Evidence---New Trial---Newly Discovered Evidence---When Newly Discovered Evidence Not Cumulative---Failure To Move for Continuance at Trial on Ground of Surprise as not Affecting Right To Move for New Trial on Ground of Newly Discovered Evidence---Necessity of Affirmatively Establishing Due Diligence---Sufficiency of Facts To Establish Due Diligence---Newly Discovered Evidence Which Impeaches Witness or Party---What Governs Granting or Refusal of New Trial.

1. In ACTION OF CONTRACT on promissory note, where defendant, after testifying to execution and delivery of note in suit and also that he had obtained $500 from certain bank, was asked whether latter amount was on note signed by plaintiff and replied that he thought it was, admission of such parol testimony as to such other note without showing defendant's inability to produce note, while error, held harmless, in view of uncontradicted evidence, subsequently introduced by defendant, showing that he did not give $500 note to obtain such money, but five notes of $100 each, and that they were indorsed by others than plaintiff, there being no evidence that plaintiff personally signed or indorsed those notes.

2. In such action, permitting cross-examination of plaintiff as to details of a personal conflict between him and defendant as result of which suit was then pending in county court although not approved, held not to show abuse of discretion.

3. Scope of cross-examination rests largely in discretion of trial court.

4. As general rule, where party has two legal causes of action involving same subject-matter, reason why he brought one action rather than other is not matter of judicial inquiry.

5. In ACTION OF CONTRACT on promissory note secured by mortgage although cross-examination of plaintiff as to availability of trover action by reason of mortgagor's having disposed of some of mortgaged property was immaterial, held that prejudice did not appear in question and answer on further cross-examination tending to show plaintiff's unwillingness to bring trover action, nor did it appear that court abused its discretion in permitting them.

6. Newly discovered evidence, which is not additional evidence of same kind to same point as was received in trial below but is evidence of new and independent facts, is not cumulative.

7. In ACTION OF CONTRACT on promissory note which plaintiff's evidence tended to show had been destroyed in burning of garage where it was kept, failure of plaintiff to move for continuance on ground of surprise upon learning early in trial that defendant had what he claimed was note in question, held not to affect his right to move for new trial on ground of newly discovered evidence concerning such note.

8. In petitions for new trials on ground of newly discovered evidence, to establish due diligence it must affirmatively appear that petitioner and his counsel had no knowledge of newly discovered evidence or of facts putting them upon inquiry before or at trial.

9. In ACTION OF CONTRACT on promissory note which plaintiff's evidence tended to show had been destroyed in burning of garage in which it was kept, where defendant at trial had produced note which he claimed was one in question that had been surrendered to him by plaintiff, held that, on plaintiff's motion for new trial on ground of newly discovered evidence tending to show that note produced was manufactured and not original note, it affirmatively appeared that there was no lack of diligence on part of plaintiff in discovering such new evidence.

10. New trial will not be granted on ground of newly discovered evidence when only effect of such evidence is to impeach adverse party or witness.

11. Where newly discovered evidence reaches beyond mere impeachment of former witness to merits of controversy, new trial will not be denied because it incidentally impeaches such witness.

12. Every petition for new trial brought conformably to law must fail or prevail according to strength of appeal it makes to judgment and conscience of court.

ACTION OF CONTRACT on promissory note. Pleas, general issue and payment. Trial by jury at the September Term, 1932, Orleans County, Sherburne, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. Subsequently, the plaintiff also brought a petition for a new trial on the ground of newly discovered evidence. The opinion states the case.

Exceptions overruled, petition sustained with costs, judgment and verdict set aside, new trial granted, and cause remanded.

Porter, Witters & Longmoore for the plaintiff.

Pierce & Miles for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

THOMPSON

This is an action of contract. The plaintiff sets forth in his specification, which was filed with the writ, that "he will seek upon trial to recover of the defendant only upon a certain note payable to the order of the plaintiff, dated at Newport, Vermont, December 9, 1925, for the sum of One Thousand Dollars, for value received, payable on demand, with interest, and signed by the defendant, Clarence B. Kelley." The note was secured by a chattel mortgage executed by the defendant at the time the note was executed.

The defendant filed an affidavit of defense in which he alleged under oath that the note was never delivered to the plaintiff; "that no obligation is owing by the defendant to the plaintiff by reason of such note"; and "that no consideration was paid by the plaintiff to the defendant at the time the alleged note" was executed. He filed an answer later in which he pleaded the general issue and payment. The only defense relied upon at the trial below was that of payment. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff excepted.

The plaintiff is the principal stockholder and chief executive officer of Bradley Auto Sales, Inc., a corporation engaged principally in selling motor vehicles and operating a garage in the city of Newport. He lived in an apartment in the garage building. His evidence tended to show that the note and mortgage were drawn and executed in his office in the garage building on December 9, 1925, and that the consideration for the same was $ 1,000 in cash paid by him to the defendant at that time, and that the note had not been paid. He did not produce the note at the trial. His evidence tended to show that the note was destroyed by fire on December 6, 1931, when the garage building was burned.

On October 24, 1925, five notes for $ 100 each, signed by the defendant and indorsed by Bradley Auto Sales and Noble & Sons, "running from one to five months consecutively," were given to the National Bank of Newport. The notes were paid when due, the last note being paid on April 2, 1926.

On December 7, 1925, the Orleans Trust Company took a note dated December 4, 1925, for $ 500, signed by the defendant and indorsed by Bradley Auto Sales, in a deposit made by the latter, the proceeds of which note were credited to the account of the Bradley Auto Sales. The defendant claimed below that these note transactions were personal transactions with the plaintiff; but the evidence is to the contrary. The consideration for the note taken by the Orleans Trust Company was $ 500 paid to the defendant by the Bradley Auto Sales by its check of December 5, 1925. The note was paid in full on March 23, 1926. All of the notes were paid by orders given by the defendant on Noble & Sons, who were milk dealers and who had the milk from the defendant's farm. The plaintiff claimed that these two note transactions were with the corporation and not with him personally; that the only personal transaction he had with the defendant was the note sued upon and the mortgage securing it.

The defendant claimed that the note for $ 1,000 and the mortgage securing it were given to the plaintiff to secure him for indorsing the notes taken by the two banks. He testified that he had the note and mortgage drawn by Mr. Cleary, a lawyer of the city of Newport, on December 9, 1925, and on the same day he took them to the plaintiff's place of business, where he executed and delivered them to the plaintiff; that long after the notes taken by the banks had been paid the plaintiff handed him the note for $ 1,000, saying: "I don't know as I need this any more." The defendant produced at the trial below a typewritten instrument, Defendant's Exhibit C, which reads as follows:

"Newport, Vermont, December 9th, 1925 "For Value Received I promise to pay John M. Bradley, or order, the sum of One Thousand Dollars ($ 1000.00). Payable on demand, with interest. (Signed) C. B. Kelley."

He testified that this instrument was the note for $ 1,000, which he gave to the plaintiff on December 9, 1925, and which the plaintiff surrendered to him.

The plaintiff denied that this instrument was the note which the defendant executed and delivered to him on December 9, 1925.

The plaintiff has briefed three exceptions taken to the admission of evidence.

The defendant was the first witness called by the plaintiff, and it was proved by him that he executed and delivered the note for $ 1,000 and the chattel mortgage securing it. He was also questioned as to whether the note had been paid, and about his allegations in the affidavit of defense that the note was never delivered to the plaintiff and that there was no consideration for it. On...