Preston v. Otey

Citations

• 88 Va. 491
• 14 S.E. 68
• 1891 Va. LEXIS 61

Syllabus

<p>1. Hew Trial — Verdict against evidence — Case at bar. — In an action for money , paid for defendant, lie filed a set-off for keeping cattle at four cents a pound for increased weight, yet admitted that they were not weighed when delivered. Plaintiff claimed that defendant agreed to purchase cattle at their cost, and at end of the year sell them back at four cents a pound;</p> <p>Held :</p> <p>Defendant’s admission was so inconsistent with his contention that the verdict in his favor should have-been set aside as against the evidence.</p> <p>2. Idem — ■After-discovered evidence not merely cumulative. — Admissions of a party in direct conflict with his testimony and his theory of defence, and bearing on the issue, is hot cumulative merely; and if his opponent- had no reason to suspect its existence, and could not by reasonable diligence have discovered it before the trial, and if it would, if present, probably have produced a different verdict, the subsequent discovery thereof will entitle the latter to a new trial.</p> <p>3. Idem — Case at bar. — After-discovered testimony of witnesses' that defendant told them the cattle were his, and he was to let plaintiff have them back in the fall at four cents a pound, though tending directly to establish plaintiff’s version of the contract, is independent evidence, dissimilar in kind to that offered by him at the trial, which was the testimony of himself and agent as to what the contract was, and is not merely cumulative, and entitles plaintiff to a new trial.</p>