Varner v. Core.

• Decision Date: 11 November 1882
• Court: West Virginia Supreme Court
• Parties: Varner v. Core.

20 W.Va. 472

Varner

v.Core.

Supreme Court of Appeals of West Virginia.

Submitted August 11, 1882.

Decided November 11, 1882.

1. An affidavit that the defendant has discovered new and material evidence which was not in his knowledge or control at or before the trial; but does not state what the evidence is, or that it could not have been obtained by due diligence before the trial, is not sufficient to authorize the court to grant a new trial, (p. 475.)

2. An exception to the opinion of the court refusing a new trial states the evidence introduced on the trial, and not the facts proved. The exceptor in such case occupies the position of a demurrant to the evidence, and unless, after rejecting all his parol evidence which conflicts with that of the other party, and giving to that of the latter full credit, the decision still appears to be plainly wrong, the Appellate Court will not revise the judgment, (p. 476.)

3. To an action of assumpsit the defendant pleads non-assumpsit and relies upon a settlement of the account sued on as a bar to the action. The evidence tended to show that the defendant coerced the plaintiff into the settlement in the absence of his books and papers, and that the settlement was grossly erroneous. The defendant did not object to the plaintiff proving to the jury his general account or ask the court to require him to point out the errors in the settlement of which he complained. The jury found a verdict for the plaintiff disregarding the settlement. Held:

I. Whether or not a settlement was in fact made was a question for the jury upon all the evidence, (p. 477.)

II. The defendant, having failed during the trial to ask the court to require the plaintiff to tile a statement pointing out his objections to the settlement, can not complain of the want of such statement in this Court, (p. 478.)

III. In cases of fraud or gross mistake, or undue advantage, or imposition made palpable to the court, the court will not require the plaintiff to specify the errors in the settlement of which he complains, but will permit him to proceed on his account de novo. (p. 478.)

Writ of error and supersedeas to two judgments of the circuit court of the county of Pleasants, rendered respectively on the 14th day of October, 1881, and on the 15th day of March, 1882, in an action at law in the said court then pending, wherein George W. Varner was plaintiff, and W. G. IT. Core was defendant, allowed upon the petition of said Core.

Hon. James M. Jackson, judge of the fifth judicial circuit, rendered the judgments complained of.

The facts of the case are stated in the opinion of the Court.

Mwineg, Melvin $ Riley for plaintiff in error cited the following authorities: 5 W. Va. 50; Waterman Set-off, 641; 10 Barb. 213; 4 Paige. 481; 2 Barb. 586; Minn. Inst. v. 4 ph. 1; 1 Chitty. PI. (4th Am. Ed.) 477; 12 Wall. 150, 232; 8 Am. Dec. 745; Sto. Eq. Jur. 1 § 528-4-5.

William P. Habpard and Henry M. Russell for defendant in error cited the fallowing authorities: 12 W. Va. 23; 14 W. Va. 23; 16 W. Va. 308; 18 1SN. Y. 288; 7 W. Va. 608; 11 Wheat. 237; 10 Wall. 129; 12 Q. B. 531; 14 C. B. 616; 8 M. & W. 140; 10 W. Va 250; 12 W. Va 94; 13 W.Va. 13.

Snyder, Judge, announced the opinion of the Court:

This was an action of assumpsit brought in the circuit court of Pleasants county, on the 13th February, 1880, by George W. Varner against W. II. G. Core. The declaration contains the common counts only, and with it the plaintiff filed an itemized account against the defendant aggregating three thousand eight hundred and forty-eight dollars and fifty cents. The defendant at the April term, 1880, entered the plea of non-assumpsit on which issue was joined, and also filed specifications of set-off. At the succeeding November term, the defendant, by leave of the court, filed as an additional set-off a note executed to him by the plaintiff, on the 7th August, 1879, for one hundred and fifty-seven dollars and thirty-one cents. At the March term, 1881, the case was tried before a jury which found a verdict for the plaintiff for two thousand and four hundred dollars. This verdict the court, on the motion of the defendant, set aside and awarded a new trial. Another trial was had at the following July term before a jury which found a verdict in favor of the plaintiff for two thousand two hundred and fifteen dollars and eighty-nine cents. The defendant moved the court to set aside this verdict also, which motion the court took time to consider until the next term, and directed a commissioner to audit the accounts filed in the cause by the parties, strike a balance between them and report to the court at its next term. The commissioner made and filed his report charging a balance of two thousand two hundred and forty-two dollars and thirty-eight cents in favor of the plaintiff. The defendant, on the 12th October, 1881, as an additional ground for a new trial, filed his affidavit, stating that he had discovered new and material evidence. The court, on consideration of the evidence, the said report of the commissioner and the affidavit of the defendant, overruled the defendant's motion for a new trial and entered judgment for the amount of the verdict. To this riding and judgment of the court the defendant expected and tendered his bill of exceptions, setting out all the evidence heard on the trial, also the report of the commissioner and the affidavit of the defendant, which was signed by the court and made part of the record. The defendant, Core, brought the case to this Court on a writ of error.

There was no objection made or exception taken during the trial to any part of the proceedings until after the jury had returned their verdict, and even then, the only motion made by the defendant was, to set aside the verdict and grant him a new trial, because the verdict was contrary to the law and the evidence, and because he had discovered new and material evidence since the trial before the jury; consequently, the only question which fairly arises upon the record is, whether or not the court erred in denying the motion ot the defendant to set aside the verdict and grant him a new trial.

The affidavit filed by the defendant is, in substance, that since the trial before the jury he "has discovered new and material evidence which was not in his knowledge or control at or before the time of the last trial of this cause," and that he "verily believes if he can be granted a new trial the said discovered evidence upon another hearing would change the verdict in his favor." This affidavit does not state what the new evidence is, or that it could not have been obtained before the trial by due diligence, To grant a new trial upon such an affidavit would be to violate well settled principles of law, and to offer a premium to negligent or fraudulent suitors to omit the exercise of proper diligence in preparing for the trial of cases. To authorize a new trial for after discovered evidence the application must show that the new evidence could not have been discovered before the trial by reasonable diligence; and the party must file his own affidavit and that of the witnesses by whom he expects to prove the facts, setting forth the facts they will swear to on the trial, unless it be shown that the latter cannot be obtained, and then a satisfactory excuse must be given for their non-production. State v. Williams, 14 W. Ya. 851; Brown v. Spyers, 20 Graft. 296.

Was the verdict of the jury contrary to the law and the evidence? The hill of exceptions, as we have seen, certifies the evidence and not the facts proved. The rule in such cases is that the exceptor occupies the position of a demurrant to the evidence; unless, therefore, it appears, that after rejecting' all the conflicting parol evidence of the exceptor, and giving to that of the other party full credit, the decision was still wrong, the Appellate Court cannot revise the judgment of court below. Newlin v. Beard, 6 W. Va. 110; Sheff v. The City of Huntington, 16 W. Va. 807; Fowler v. B. 0. R R. Co., 18 Id. 579.

Testing the case by this rule, is the evidence insufficient to support the verdict? The plaintiff testified that his account was just and unpaid; that, on the 7th August, 1879, lie was in the town of St. Marys and while there C. C. Davis, a lawyer, came to him and stated that Core, the defendant, had placed his accounts against the plaintiff in his hands for suit and he wanted him to go to the law office of said Davis and the defendant, Core, and settle or he would sue him; that he then went to said law office where the defendant produced his notes and accounts for settlement; that he told defendant he was not ready to settle as lie had not all his papers with him and wanted to go home, some miles from St. Marys, and get his books and papers, but the defendant objected and threatened that he would sue him before he left town if he did not settle; that under this threat and these circumstances he and the defendant made a false and erroneous settlement, and he executed to defendant his note in the words following:

"One year after date, I promise to pay to the order ot W. G. II. Core one hundred and fifty-seven dollars and thirtyone cents, it being due him on settlement of store account, with interest from date,

"Witness my hand this 7th day of August, 1879.

"G. W. Varner."

He further testified that a fair and just settlement was all lie wanted and that such, settlement would show the defendant had swindled him, and that the defendant owed him about two thousand five hundred dollars.

The defendant testified that he made a settlement with the plaintiff at the law office of Core & Davis in St. Marys and the defendant executed to him the note above given as the result of...