Joslin v. Rhodes

CAPOTOSTO, J.

After a hearing on bill of exceptions these cases were returned from the Supreme Court for the consideration by this court of new • evidence which Rhodes claims t'o have discovered subsequent to the denial by this court of his original motion íor a new trial. The newly discovered evidence which Rhodes seeks to take advantage of is set forth in an affidavit of one Mrs. Sweet, who claims, among- other things, to have heard Joslin say on more than one occasion that his contract with Rhodes was to saw the timber on both lots. Joslin in a counter affidavit denies any such admission at any time.

For George E. Joslin; Cooney & Cooney. For Elbridge A. Rhodes: James H. Rickard, Jr.

The original motion for a new trial was denied by this court because the testimony on the actual agreement' between the parties was presented by interested parties on each side; that is, Joslin on one side and Rhodes and his son on the other. Under these circumstances the jury might well believe one and not the other. In the absence of any reason to question this finding, the jury’s verdict was allowed to stand. What effect the testimony of Mrs. Sweet would have had upon the jury is something that no one can tell. Admissions ag-ainsi mt'erest may or may not be of vital importance to a jury in determining a given question of fact. Much depends upon the circumstances under which the admission was made, if made at all, and the appearance and demeanor of the witness on the witness stand who testifies to that particular fact. Mrs. Sweet’s testimony, therefore, may or may not assist the jury in reaching a conclusion.

The argument advanced by counsel for Joslin as to the value of Mrs.’ Sweet’s testimony may have great weight with a jury, but I can not at this time say that, taking' the testimony at its face value, it might not result in a different verdict. I feel that Rhodes should have an opportunity of presenting his case to a jury upon all the evidence which is now in his possession.

The motion of Elbridge A. Rhodes for a new trial in each case is therefore granted.