David v. Gonzalez ( 1918 )

HamiltoN, Judge,

delivered tbe following opinion:

• 1. In tbis case tbe defendant was surprised by tbe motion of plaintiff on tbe pleadings at tbe trial,'in consequence of wbicb tbe court ruled tbat tbe effect of tbe imperfect denial in tbe answer was substantially an admission of tbe complaint, throwing tbe burden of proof upon tbe defendant. One of tbe admissions thus resulting was tbat tbe contract made by tbe defendant with one Link was tbe property of tbe plaintiff. It is quite possible tbat tbis admission was not intended by tbe defendant, and without objection by tbe plaintiff evidence was admitted wbicb tended to show tbat tbe contract bad been assigned by Link to a,third party. If plaintiff bad objected to tbis evidence tbe court would have been compelled to rule it out; but, not having objected, tbe plaintiff cannot now make it tbe ground for application for a new trial.

2. Tbe jury came back and asked tbat tbe evidence of Link be read to them, wbicb was done, and shortly afterwards they brought in a verdict. Tbis was tbe evidence wbicb tended to show tbat tbe contract belonged to a third party. It did not occur to the court tbat tbis might be what was in tbe mind of tbe jury, and therefore no additional instruction was given to the effect that ownership was admitted by the pleadings. Indeed, it is not clear that the court could properly interfere with the reading of evidence which had not been objected to by the parties.

However, the court is not satisfied with the result of the case. The necessary rulings on the pleadings, not anticipated by the plaintiff, were a surprise on the one side, and the action of the jury in re-reading what was at least immaterial evidence was surprise to the defendant on the other side. It would seem best to have the facts re-examined by another jury. As the plaintiff did not make the objection which he easily could have interposed to the immaterial evidence, it seems only right that terms should be imposed upon him if he is to receive the benefit of a new trial.

Therefore the order of the court will be that the new trial will be granted upon the plaintiff’s paying all costs of the court, to be taxed by the clerk, within ten days from this date. If this is not done, the application for a new trial is denied.

It is so ordered.