Preston v. Otey

• Decision Date: 03 December 1891
• Citation: 14 S.E. 68,88 Va. 491
• Court: Virginia Supreme Court
• Parties: Preston. v. Otey.

14 S.E. 68

88 Va. 491

Preston.

v.Otey.

Supreme Court of Appeals of Virginia, .

Dec. 3, 1891.

Review on Appeal—Weight op Evidence—New Trial—Newly-Discovered Evidence.

1. In an action for money paid as accommodation indorser, defendant put in a claim as setoff for keeping 100 head of cattle at the agreed price of 4 cents a pound for the increased weight of tho cattle. Plaintiff claimed that the contract was that defendant should take the cattle at $30 a head, the cost thereof to plaintiff, and that at the end of the year he should sell them back to plaintiff at 4 cents a pound. Defendant's testimony, which was all the evidence in regard to the contract introduced on his part, was that he was to keep the cattle at 4 cents per pound for the increased weight put on them by him; yet he admitted that the cattle were not weighed to him, for the reason, as he testified, that he supposed plaintiff had weighed them. Held, that this admission was so utterly inconsistent with his version that the verdict in his favor should have been set aside as against the evidence.

2. After-discovered evidence, consisting of the testimony of persons that defendant told them, in reply to a question asked by them of him if he was keeping cattle for plaintiff, that the cattle were his, but that he was to let plaintiff have them back in the fall at 4 cents a pound, though tending directly to establish plaintiff's version of the contract, is independent evidence, dissimilar in kind to that offered by plaintiff on the first trial, which was merely the testimony of himself and agent as to what the contract was, and is therefore not cumulative merely, but entitles plaintiff to a new trial on a showing that he had at the first trial no reason even to suspect its existence.

Error to circuit court, Montgomery county.

Action by William Ballard Preston against G. Cloyd Otey for money paid as an accommodation indorser. Defendant recovered judgmeut on a set-off, a new trial was denied, and plaintiff brings error. Beversed.

Waller It. Staples and Phlegar & Johnson, for plaintiff in error.

J. H. Hoge, for defendant in error.

Richardson, J. This was an action of trespass on the case in assumpsit brought in the circuit court of Montgomery county in October, 1886, by William Ballard Preston, plaintiff, against G. Cloyd Otey, defendant, to recover money paid by said Preston as accommodation indorser for said Otey. The action was brought to the October rules, 1886, and at the December term, 1886, the defendant pleaded con assumpsit and payment, upon which pleas issue was joined, and on the defendant's motion leave was given him to tile a special plea and an account of set-offs in 60 days, and the cause was continued; and on the 2d day of February, 1887, the defendant filed the following account of setoffs:

"William Ballard Preston. 1884 and 1885. In acct. with G. C. Otey.

To keeping, pasturing, feeding, and caring for 100 yearling cattle from 1st October, 1884, to 1st January, 1885... $ 300 00

To feeding, keeping, pasturing, and caring for 95 head of cattle from 1st January, 1885, to November 1, 1885.. 1, 250 00 $1,550 00"

This account was indorsed: "This account is filed by G. C. Otey as a set-off to the action now pending against him in the circuit court of Montgomery county in the name of William Ballard Preston, plaintiff, and will be relied upon by Otey as a set-off at the trial of the cause. G. C. Otey. By his Counsel."

The case was called for trial in the circuit court of Montgomery county on the 11th day of May, 1888, and the trial was then gone into. When the case was called for trial the defendant, Otey, filed with his said account of set-offs an additional item of increased weight of cattle, 38, 750 pounds, at 4 cents per pound, making just $1,550. During said term, to-wit, on the 14th day of May, 1888, the jury returned the following verdict: " We, the jury, find for the plaintiff on his demand, and assess his damages at $785.77; and we find for the defendant on his plea of set-off, and assess his damages at $980.64; and we therefore find for the defendant the excess, ascertained by us to be $194.87." And thereupon the plaintiff moved the court to set aside the verdict of the jury, and to grant him a new trial, on the ground that the verdict was contrary to the evidence, which motion the court overruled; and thereupon proceeded to enter judgment according to the finding of the jury, to which action of the court the plaintiff excepted, and this is his bill of exceptions No. 1, in which the court certifies all the evidence adduced at the trial, and also the instructions given to the jury at the instance of the parties, respectively. At a later day of the same term of the court, to-wit, on the 19th day of May, 1888, the plaintiff again moved the court to set aside said verdict, and grant him a new trial, on the ground of after-discovered evidence; and in support of his motion filed his own affidavit and those of James T. Evans and George P. Wall. In his own sworn statement the plaintiff, Preston, sets forth that he had no knowledge of the evidence detailed by James T. Evans and George P. Wall, set forth in the affidavits of said Evans and Wall, filed with the affidavit of said Preston, until after the verdict was rendered in this suit, and no reason to believe or suspect that such Information was in their possession, and that he believes their statements are true, and that if they had been before the jury they would have found a different verdict. The said affiant James T. Evans, in his sworn declaration, which accompanies that of the plaintiff, Preston, says "that, being with G. C. Otey in the fall of 1884, some time after the cattle had been placed upon the farm of said Otey by said Wm. Ballard Preston, he (Evans) asked said Otey the following question: ' Cloyd, you are keeping some cattle for Ballard Preston, ain't you?' to which question Otey replied, 'No, they are my cattle; I am to let him have them back next fall at 4 cents per lb." And the affiant Evans further states that George P. Wall was present when the above conversation took place. And in his affidavit George P. Wall declares that he was in company with James T. Evans and heard Evans ask said Otey if he was not keeping some cattle for Ballard Preston, and that said Otey replied: "No; they are cattle. I'm to let him have them back next fall at 4 cents per pound." And the affiant says this conversation took place some time during the fall of 1884; and it was admitted that the affiant Evans was the same James T. Evans who testified at the trial of the cause, and that the item in defendant's account of set-offs for increased weight of cattle was not filed by him until the cause was called for hearing at the May term, 1888. But in the face of this after-discovered evidence the court overruled the plaintiff's second motion to set aside the verdict of the jury, and grant him a new trial, and to this action of the court the plaintiff also excepted, and this is his bill of exceptions No. 2; and the plaintiff obtained a writ of error.

There is no dispute as to the claim sued for by the plaintiff, Preston. The whole controversy is as to the set-off relied upon by the' defendant, Otey, at the trial. In the fall of 1884 the said defendant took, without weighing, 100 head of yearling cattle from the plaintiff. The defendant claims that he was to have 4 cents per pound for the increased weight of the cattle while in his possession. The plaintiff claims that the contract was that the defendant, Otey, was to take the cattle at cost to the plaintiff, which was $30 per head, and that the plaintiff, Preston, was to take them back the next fall at 4 cents per pound. The real point in dispute is whether the defendant, Otey, took the cattle as his property, and resold them to the plaintiff, Preston, to be redelivered to the plaintiff the succeeding fall at 4 cents per pound, or whether he took the cattle as the property of the plaintiff, and was to receive pay for keeping them. In other words, the controlling question is, what was the contract between the parties? This is made perfectly clear by the first of the two instructions given by the court to the jury at the instance of the plaintiff, which is as follows: "The jury are not to determine the plea of set-off with regard to what it may have been worth to keep cattle by the month; all such evidence is excluded from them. They are to find on the plea of set-off what was the contract between the parties. If they And that the contract was that Col. Preston was to pay Mr. Otey 4 cents a pound for number of pounds that they increased in weight while in Mr. Otey's possession, they must find how much they increased in weight, and allow the defendant 4 cents per pound for such increase. But if the jury find that the contract was that Mr. Otey would take the cattle at what they cost Col. Preston, and that Preston would take them hack in 12 mouths at 4 cents per pound, and that the cattle cost Col. Preston $30 per head, they must find what they were worth at 4 cents a pound when taken back by Preston, and find for the defendant only the difference between such value and ¥30 per head."

It will be observed that the defendant's account or set-offs, as originally filed by him on the 2d of February, 1887, was made up of two items, one of which was $300 for keeping, pasturing, feeding, and caring for 100 yearling cattle from 1st of October, 1884, to 1st January, 1885: and the other, $1,250, for keeping, feeding, pasturing, and caring for 95 head of cattle from 1st of January, 1885, to November], 1885, —the two items aggregating just $1,550. It appears that five of the original number of cattle died after they were taken charge of by the defendant, Otey; hence the first item of $300 was for keeping 100 cattle, while the other item of $1,250 was for keeping the remaining 95 head. It is not pretended that the keeping of any other cattle was involved in this...