Stackpole v. Perkins

• Decision Date: 27 January 1893
• Citation: 85 Me. 298,27 A. 160
• Parties: STACKPOLE et al. v. PERKINS.
• Court: Maine Supreme Court

27 A. 160

85 Me. 298

STACKPOLE et al.

v. PERKINS.

Supreme Judicial Court of Maine.

Jan. 27, 1893.

(Official.)

Action by Charles T. Stackpole and another against Albert H. Perkins. Defendant had judgment, and plaintiffs move for a new trial. Motion sustained.

Baker, Baker & Cornish, for plaintiffs.

Heath & Tuell and Walton & Walton, for defendant.

HASKELL, J. This is an action for breach of warranty in the sale of a horse. The verdict was for defendant. A motion for new trial is made, because the verdict is against the weight of evidence, and because of evidence newly discovered since the trial. The unsoundness complained of is quarter crack. The warranty is admitted. The report of evidence contains more than 700 printed pages. Photographs of the foot taken after the sale, are shown.

A careful consideration of the evidence used at the trial makes it extremely doubtful whether the verdict is sustained by the weight of it.

Witnesses are produced who testify that they saw the quarter crack before the sale. If their testimony be true, the verdict should not stand. We have not seen them and heard them testify. We think their credibility should be passed upon by a jury.

It is objected that their testimony is cumulative, and not newly discovered. We think it is newly discovered. In one sense it is cumulative. It tends to prove the one fact in dispute,—the existence of the quarter crack. The evidence of plaintiffs at the trial did. In this respect it is cumulative. But, on the other hand, it tends to prove Independent facts,—what each witness saw at different periods of time before the sale,— leading more or less strongly to the inference of unsoundness at the date of sale.

However this may be, there is one piece of evidence that, if true, destroys, or at least impairs, the testimony of one of the most important witnesses called for the defendant at the trial, not open to this objection.

At the trial, the smith who had usually shod the horse for its owner during the summer, prior to his sale of it, in December, testified that the horse had no quarter crack. Of all men this witness must have known the fact. His evidence must have had great weight with the jury. A witness is produced who testifies that the smith, after the sale of the horse, told him that it had a quarter crack before the sale. This witness is newly discovered, and his evidence is not cumulative in a legal sense. If believed, his testimony must substantially destroy the evidence of a...