Seaver v. Seaver , 83 Ind. App. 370 ( 1925 )

Per Curiam.

Action by appellee against appellant wherein appellee seeks to recover from appellant a balancé of $1,200 of the purchase money of a certain tract of real estate. It is appellant’s contention, as appears by his affirmative answer, that said balance of $1,200 of the purchase price of such real estate was, by agreement of appellant and appellee, to be paid by him in the discharge of a certain mortgage upon another tract of real estate owned by the appellee instead of paying the same in cash.

There was a trial by the court and a judgment in favor of the appellee. The only error assigned is the action of the court in overruling appellant’s motion for a new trial, the reasons properly assigned being that the decision of the court is not sustained by sufficient evidence, that it is contrary to law, and that appellant has newly-discovered evidence in the event of another trial.

While the evidence was conflicting, there was evidence that appellant agreed to pay the said sum of $1,200 in cash and this was sufficient to sustain the finding and judgment of the court in favor of the appellee.

As to the newly-discovered evidence, appellant wholly fails to show due diligence in discovering the new evidence, and such evidence was merely cumulative.

Judgment affirmed.