
    Boydstun v. Presley
    No. 42349
    May 28, 1962
    141 So. 2d 561
    
      
      Boydstun & Boydstun, Louisville, for appellant.
    
      Charles D. Fair, Louisville, for appellee.
   Lee, P. J.

The matter here in controversy involved the sum of $400, plus interest and attorney’s fees, and arose in this way: Joe Lyon entered into a contract with Salathiel Presley to build and construct, according to Acme Building Supply Blueprint, “The footings and foundation and complete ‘black-out’ job consisting of blacking out with felt the entire house, subflooring of approximately 2700 square feet, all inside studs, compíete roofing, chimney and fireplace complete, and the setting in of all exterior windows and exterior door facings. The contract also includes the construction of the blockouts for the cornice boards and the cornice facings except the cornice ceilings. The total contract price for this construction is Fourteen Hundred (1400.-00) Dollars.” Presley was to furnish all materials and deliver the same to the site, and was to make payment for the work in two installments of $500 each as the work progressed, as stipulated, and a final payment of $400, evidenced by a note, due thirty days after completion of the contract. The two installments were paid. But Presley, because of alleged defects in the work, declined to pay the note when it became due. Lyon assigned the past due note to R. W. Boydstun, Jr. for a credit of $350 on his account; and Boydstun instituted suit for collection of the note, interest, and attorney’s fees.

The pleadings, as made up, presented an issue as to whether or not the work, as performed by Lyon and his employees, was done in good workmanship style. The plaintiff affirmed that it was, and the defendant charged that it was not.

galathiel Presley was called as an adverse witness for cross-examination, and he detailed his complaints as follows: There were a number of leaks in the valleys because the roof was improperly laid, and there was no flashing used around the chimney. The hearth was exposed more on one side than on the other. The window jambs were cut too narrow and short. There was a swag in the kitchen floor and a bow in the den floor. Numerous studs were omitted. The plans called for them to be erected on 15-inch centers, but there was no uniformity, and some were ten inches apart while the space between others was twenty-one inches. No ventilators were placed in the foundation. Many of the walls were not straight; and because of this irregularity the bathtub would not fit. About three-fourths of the time smoke would not go up the chimney and the doors had to be opened. He said that he gave no orders about the roof ridge. On his direct examination, Presley was more elaborate in describing the alleged defects. Besides, he denied the claim of Lyon that certain changes were made at his instance.

Corroborating evidence as to the defective and leaky roof was given by James Harrell, who claimed to be an experienced roofer. It was his opinion that it would cost between $400 and $500 to correct such defects. Fred Nabors, who appraised the place, testified that the valleys were faulty and the workmanship defective. He saw the house just after a rain and observed that it was leaking. He also gave corroboration as to the chimney, hearth and window casings. Bernard White-side, a neighbor, corroborated Presley’s version in practically all particulars, including the failure of the chimney to draw properly.

Joe Lyon testified in detail that he did everything in accordance with the plan except such as Presley, or his father, acting for him, changed; that he left off the flashing around the chimney because Presley told him to do so; that he was in the house during a rain, and there were no leaks at that time; and that the nails in the roof ridge were used because Presley was afraid the shingles would blow off. He admitted that there was a slight defect in the hearth and the chimney, and said that he offered to remedy it if Presley would get some more brick, but that he declined to do so. George Eichelberger, an employee of Lyon, corroborated his employer’s version in all particulars.

Thus the factual issue as to defects and good workmanship was in sharp dispute. The court-gave a number of instructions, which fairly presented the law on that issue. No complaint- whatever was- made as to. them. The. jury-found a verdict, for the defendant, and. a judgment to that effect was promptly entered on the minutes.

The trial was commenced and concluded on July 19, 1961. Upon the return of the verdict, the plaintiff made a motion for a new trial on the ground that the verdict was against the overwhelming weight of the evidence. This motion was overruled.

Thereafter on September 5, 1961, the plaintiff filed a paper styled “ MOTION FOR NEW TRIAL ON NEWLY DISCOVERED EVIDENCE AND PROOF OF PERJURY.” The alleged perjurers were Fred F. Nabors, Salathiel Presley and James Harrell.

As to Nabors, the motion in fact said that this witness, on cross-examination during the trial, testified that he took approximately 2,700 square feet as the area of the house, and, using a unit value in square feet, he put an estimated value, after correction of the deficiencies and completion, of $12,500, when the witness had already made an appraisal for Jackson Life Insurance Company, Memphis, Tennessee, showing the house not completely finished but of the value of $18,200. He attached what purported to be a photostatic copy of the alleged report. However, the same did not show to whom the report was made. Nor was its genuiness accounted for.

As to Salathiel Presley, the motion said that Presley in effect testified that he did not see a copy of the appraisal or know the amount thereof; that he did not know the amount of the loan which he obtained or the monthly payments; and that he did not know the cost of material that went into the construction of the house, when he, in fact, had advised with Nabors about the report, executed the note and deed of trust to secure the amount of the loan in the sum of $9,000, had made four monthly payments on the loan, and knew the exact and approximate cost of all materials.

As to James Harrell, the motion said in effect that this man was an itinerant laborer on the Welfare Rolls of Noxubee County, with a general reputation in tbe community where be lives as being “a no-account bum, totally unreliable and irresponsible. ’ ’

Tbe motion was overruled by tbe judge in vacation on September 25, 1961.

Boydstun appealed, and has assigned as error tbe action of tbe court in overruling bis motions for a new trial.

As to tbe first motion, filed during tbe term of court, it is sufficient to say that tbe issue was clear cut and sharply disputed. Obviously tbe factual situation was for determination by tbe jury. Kirkwood, et al., d. b. a. Kirkwood Furniture Store v. Hickman, 223 Miss. 372, 78 So. 2d 351. Manifestly tbe verdict was not against the overwhelming weight of tbe evidence, and tbe court properly overruled tbe motion.

As to tbe motion for a new trial, which was filed after tbe adjournment of court, there are at least two reasons why tbe court was right in overruling tbe same, namely, because (1) tbe motion was insufficient; and (2) the motion was filed after tbe court bad adjourned.

The motion here under consideration was a mere pleading, not even made under tbe solemnity of an oath. Tbe issue before tbe jury in tbe trial was whether or not tbe bouse was constructed according to good workmanship, not tbe appraised value of tbe same, nor tbe amount of tbe consideration of tbe deed of- trust, nor tbe amount of tbe monthly payments, nor tbe cost of materials. If tbe witnesses, in their cross-examination, made mistakes in those matters, or even if their statements in those particulars did constitute false swearing, such statements were not, in fact, material to tbe issue before tbe court. Tbe resulting impeachment, if such it was, would go only to immaterial matters. It must be remembered also that no aspersion whatever was cast on tbe testimony of Bernard White-side, who testified positively and directly to leaks in the roof, the defective condition of the window casings and jambs, and the condition of the chimney with smoke backing ont into the house.

In Redmond v. Marshall, 162 Miss. 359, 137 So. 733, the opinion pointed out that the party, who seeks a new trial on the ground of newly discovered evidence, must satisfy the court that such evidence has come to his knowledge since the trial, that its discovery was not due to a want of diligence on his part, and that the new evidence will probably produce a different result, if a new trial is granted. The opinion also said: “Newly discovered evidence which is merely cumulative, or which simply tends to impeach one or more witnesses, is not ground for a new trial; and evidence of the same kind as that already given, to the same point, is cumulative, and not merely corroborative”, citing four Mississippi cases. See also Trotter v. Staggers, 201 Miss. 9, 28 So. 2d 237; Black v. Stone County Lumber Company, 216 Miss. 844, 63 So. 2d 405; Hutto v. Kremer, 222 Miss. 374, 76 So. 2d 204; Jones v. State, 229 Miss. 437, 91 So. 2d 269.

Besides, only twelve days are scheduled for ■the term of Circuit Court in Winston County, which convenes on the Second Monday of July. The case was tried on July 19, 1961. The motion was not filed before the court adjourned. Actually, it was filed on September 5, 1961, long after the court had adjourned.

When a term of court is finally adjourned, a party’s right to file a motion for a new trial ends. Pittman v. State, 147 Miss. 593, 113 So. 348; Dobbs v. State, 200 Miss. 595, 27 So. 2d 551; National Casualty Company v. Calhoun, 219 Miss. 9, 67 So. 2d 908; Thornhill v. State, 240 Miss. 131, 126 So. 2d 527.

There was no error in the court’s refusal to grant a new trial, and the judgment must therefore be affirmed.

Affirmed.

Gillespie, McElroy, Rodgers, and Jones, JJ., concur.  