Goldstein v. Lowther

Citations

• 81 Ill. 399

Syllabus

<p>New trial—party taken by surprise entitled to. Where there are no written pleadings to apprise a defendant of an intention on the part of the plaintiff to rely upon a verbal contract alleged to have been substituted for a written contract acknowleged to have existed between the parties, the defendant may well complain of a surprise by such a course; and upon an affidavit to the effect that he was so surprised, and that no such verbal contract was ever made, that he was unable, by reason of such surprise, to produce witnesses to contradict the testimony of plaintiff’s witnesses, and that, upon another trial, he can produce such witnesses, a new trial ought to be granted.</p>