Waite v. Fish

Citations

• 17 S.D. 215
• 95 N.W. 928
• 1903 S.D. LEXIS 30

Syllabus

<p>1. In an action on a note executed by defendant to a firm, and by it transferred to plaintiff (one of the partners), defendant set up that it was given to the other partner as collateral security to notes and indebtedness held by the latter against defendant, and that such notes and indebtedness were paid; and there was evidence that an individual note held by such other partner, and to which defendant claimed that the note in controversy was collateral, had been paid. Plaintiff was unable to secure the firm letter and account books at the time of trial, and judgment was given for defendant. Subsequently such books were found, and showed that the note sued on was given the firm in settlement of an account contracted by defendant with ' such other partner, and by him transferred to the firm. Held newly discovered and material evidence, entitling plaintiff to a new trial.</p> <p>2, The affidavit of the other partner, who had no interest in the suit, showed that before the trial he was requested by plaintiff’s attorney to produce the books, and that he made diligent search, but was unable to discover them until afterwards, when they were accidentally found. Held to show sufficient diligence on plaintiff’s part.</p>