Ellis v. Kelly

Eishek, J.,

delivered the opinion of the court.

This was an action brought in the Circuit Court of Hinds county, by the plaintiff below, upon an instrument of writing, in the following words, to wit: “We, T. M. Ellis and John C. Chrisman, agree and obligate ourselves to pay John Moran one thousand dollars, clear of all demands that are now against him on our books, the same to be paid him when the debts of the firm of T. M. Ellis & Co. are paid off, or earlier, if found convenient to us, the same being in full compromise of the entire interest, he the said Moran had in the concern of T. M. Ellis & Co. The said John Moran hereby relinquishes all further claims in said concern to the said Ellis & Chrisman.” Signed by the above-named parties. The writing being presented by a witness to Ellis, the defendant, he admitted that he had paid' off the debts of the firm, but stated at the same time the firm had sustained heavy losses, and made, in the same connection, other statements, which are not material to be noticed. It is insisted on behalf of the defendant below, that the proof shows that Ellis paid the debts out of his individual means, and not out of the funds of the copartnership, and that no recovery could be had, until it could be shown that the debts were paid from the funds of the copartnership, or until Ellis was reimbursed from that source the money which he had furnished from his individual means. We differ with counsel in this construction of the contract. The undertaking is to pay when the debts of the concern are paid, or earlier, if convenient. This has reference to the timé when the contract is to become due, and not to the funds out of which the money is to be paid.

It is again said, that the court erred in refusing the motion for a new trial. The defendant made an affidavit that he was taken by surprise, by the testimony of Barnes, the witness, and the only witness relied on by the plaintiff, to prove the admissions of the defendant.

That the witness stated but a part of the conversation, and this not in the proper connection; that he, the defendant, only admitted an indebtedness to the amount of one-half of the amount of the contract, &e. This showing wholly fails to come within the settled rule in such cases. One object of the new trial is to impeach the witness, and even if the motion could be sustained on this ground, no showing is made as to the testimony by which this alleged mistake of the witness can he established, and no sufficient reason is given, if-such testimony exists, why it was not introduced on the trial. The law exacts diligence from litigants, and it is only in a case where a party could not, by the use of proper diligence, make out his claim or defence at the trial, that a new trial will be granted.

As to the affidavit of Bailey, it only relates to the construction of the contract, and if the testimony had been offered on the trial, it could not have been admitted.

Under this view of the law, the judgment must be affirmed.