Gray v. Powell ( 1926 )

On petition for rehearing:

Counsel for defendants contend that the proposed testimony of Eddins is not cumulative, but is new evidence setting up new facts; and that it does not tend to impeach a witness in the case, but contradicts the testimony of one of the parties to the action, and is an admission of that party against his interest. By reference to the opinion it will be noted that the decision was not confined to the cumulative or impeaching character of the evidence proposed. The principal question discussed was whether the newly discovered evidence ought on another trial result in a verdict for the defendants. Eddins’ affidavit may tend to support Powell’s testimony that plaintiffs were to erect the addition to the building at their own cost; but it does not support his theory that he was to pay for the building and collect additional rent from July, 1924, evidenced by his letter of December 17th, and defendants’ claim of set-off. Powell does not explain why he wrote this letter, nor why defendants accepted $75.00 per month rent for the full term of the original lease. These acts were certainly not in accord with his version of the contract as testified to by him on the trial. In concluding the original opinion we said, "we do not think that Eddins’ testimony is such as ought to produce a different result on another trial. ’ ’

Counsel argue that the holding here is not in accord with the opinion in the case of Cavender v. Cline Ice Cream Company, 101 W. Va. 3, where we said: “If plaintiff had been the only witness to testify to the facts detailed by her, the testimony of Sparks might satisfy the rule, that the newly discovered evidence must be such as ought to produce an opposite result on another trial; but here the testimony of Mrs. Adams and Mr. Mudd fully corroborates plaintiff, and is sufficient to support a verdict for her.” In the present case Wayman testified to substantially the same facts as Gray. It is true he was also a party to the action; but Gray’s admission, if true, would not bind him, and the jury must necessarily disbelieve his testimony to find for the defendants.

The petition for rehearing will be denied.

Affirmed.