Capital Garage Co. v. Powell , 97 Vt. 328 ( 1924 )

The petition for a new trial is based on two grounds: First, newly discovered evidence, shown by the deposition of Frank P. Fleming who now resides at Arlington in the State of Massachusetts; second, the petitioners' inability to find Fleming in season to have him present as a witness at the trial of the case.

The deponent's testimony is very material and important, since it strongly tends to support the defendants' claim at the trial, that defendant Powell was in possession of the demanded premises under and by virtue of a verbal lease to him personally from Thomas J. Heaphy, the owner of the realty. Concerning this evidence, the petitionee asserts, among other things, that it is not newly discovered, and so cannot constitute an effective basis for a new trial. This assertion strikes at the vitals of the proceedings; for if the evidence is not shown to be newly discovered within the meaning of the law, the first ground of the petition must be denied. Madden v. Spaulding, 94 Vt. 290, 110 A. 220; Hemenway v. Lincoln, 82 Vt. 465, 73 A. 1073.

Deponent says that he was in the employment of Powell from November, 1920, until March, 1921, as manager of the Capital Garage at Montpelier; that Powell informed him that he had obtained control of that garage and wished to arrange with Heaphy that he might become the latter's tenant therein, and told deponent to see Heaphy and make all satisfactory arrangements; that accordingly deponent had negotiations with Heaphy in behalf of Powell for a lease of the building where the garage was; that the negotiations so had resulted in Heaphy's naming the terms under which he would make a verbal lease of the premises to Powell personally, and deponent's acceptance thereof subject to Powell's verification; that deponent notified Powell of the negotiations, and the latter came to Montpelier and closed the deal with Heaphy as before agreed upon by deponent; that the agreement included the rent to be paid per month for the use of the premises including a nearby barn for storage, and the payment of a sum equal to the rent due from and unpaid by the previous tenant, the Burnell-Faulkner Company whose lease, Heaphy stated to deponent, had been abandoned by the company, was not then effective, and the company itself was defunct.

Deponent testifies to the terms of the new lease, also to the declarations made by Heaphy at the time of the negotiations as to his right to give a lease to Powell, as to the Burnell-Faulkner Company and the previous lease to it; also to his paying to Heaphy by check, as Powell's agent, the rent called for by the new lease, as it became due, during the time deponent continued in the latter's employ as manager of the garage; also to the payment of the sum equal to the rent in arrears from the Burnell-Faulkner Company, which under the agreement for the new lease was to be paid by Powell.

The testimony of deponent need not be further stated nor more in detail. It seems certain that before and at the time of the trial, Powell had knowledge that Fleming, if called as a witness, could testify substantially as now appears from his deposition, and consequently his evidence is not newly discovered. Hemenway v. Lincoln, supra.

Nor is the second ground of the petition more available; for, by failing to move for a continuance of the case to enable them to find and have the benefit of deponent as a witness, the petitioners elected to go to trial on such evidence as they had.Badger v. State, 69 Vt. 217, 37 A. 286.

Petition dismissed with costs.