National Trade Extension Co. v. Alienello

FROST, J.

Heard on defendant’s motion for a new trial on tbe ground of newly discovered evidence after verdict for plaintiff in the sum of $418.46.

In this Court a verdict was directed against the defendant and bis exception thereto was overruled in the Supreme Court. Subsequently be filed in the Supreme Court bis petition, presumably under the provisions of Chapter 347 of the General Laws of 1923, for permission to file in this Court a motion for new trial on the ground of newly discovered evidence. Such permission was given; a motion for new trial was filed and with it the affidavit of defendant setting forth that he bad obtained certain written evidence bearing upon the disposition of goods originally sold to him but not accepted by him. The amount of the verdict represented, with interest, the contract price of merchandise and services sold to the defendant. There was evidence that the merchandise was refused by the defendant but it did not appear that the same merchandise had returned to the possession of the plaintiff.

The -Court thinks the evidence obtained is material in any determination of the amount of damages due the plaintiff. The Court cannot say that due diligence has not been shown since it is generally understood that written evidence of the sort now possessed cannot ordinarily be obtained within a few days from a common carrier doing business over a large extent of territory.

Defendant’s motion for a new trial is granted.