Armstrong v. Davis , 41 Cal. 494 ( 1871 )

By the Court, Crockett, J.:

The plaintiffs moved for a new trial on the ground of surprise and newly discovered evidence, and, the motion having been denied, they have brought this appeal. The alleged surprise is founded on the fact that at the trial the defendant testified that a promissory note of the plaintiffs for two thousand dollars, held by him, was executed and delivered on the day of its date, at the residence of the defendant, in consideration of that sum in gold coin, on that day loaned by him to the plaintiffs; whereas the plaintiffs allege that no sum whatever was loaned to them by the defendant; that the note was an accommodation note made by them, without having received any valuable consideration therefor, and for the sole accommodation of the defendant, to enable him to raise money thereon for his own use, and on his promise to pay the note at maturity, in case he should -procure the same to be discounted. The note on its face purports to have been made for value received; and the defendant, in his answer, sets out a copy of the note and relies upon it as a valid counterclaim. With this answer before them, it is difficult to understand how the plaintiffs could have been surprised when the defendant testified that the note was given for a valuable consideration, and was not made for his accommodation. After setting it up in Ms answer as a counterclaim, and after*1 the plaintiffs had distinctly taken issue upon the averment that the note was made for a valuable consideration, they could not well have been surprised that the defendant attempted to make good by proof a fact distinctly put in issue in the pleadings. The note itself was prima facie evidence that it was made for a valuable consid eration, and the onus was on the plaintiffs to rebut this pre sumption. Under all the facts, the plaintiffs have shown no such surprise as entitled them to a new trial on that ground.

In respect to the newly discovered evidence, if it be conceded that the plaintiffs were guilty of no laches in failing to produce it at the trial, and that it is material and pertinent, it is, nevertheless, liable to the objection that it is only cumulative. But if it were not, we do not think it is so conclusive in its character as to raise a reasonable presumption that the result of a second trial would be different from the first.

Order denying new trial affirmed.