
    GEORGE T. NEWHALL, Appellant and Respondent, v. WILLIAM H. APPLETON, et al., Respondents and Appellants.
    
      New trial — what constitutes such surprise as to call for—what is such newly discovered evidence as affm'ds grounds for.
    
    Where plaintiff, in his complaint, admits payment of a certain sum on account of the claim in suit and demands judgment for the balance, testimony given by him, under objection, to the effect that a portion of such payment was on account of a claim other than that in suit, the witnesses cognizant of such payment not being accessible, constitutes such surprise as to afford ground for a new trial; this, though the answer alleges payment of a sum equal to or larger than that admitted by the complaint.
    
      It seems, that such error can be cured upon appeal by compelling plaintiff, as a condition of affirmance, to stipulate that his judgment be reduced by the amount so withdrawn from his admission of payment.
    "Where verdict in such case has been rendered in accordance with the plaintiff’s testimony, a letter from plaintiff to defendants’ agent, tending to show.that the payment admitted by the complaint (and which the plaintiff was allowed to testify to. have been made upon a specific claim other than that in suit), was made wholly on general account, and which letter tends to impeach plaintiff’s testimony, and also amounts to an admission of facts, inconsistent with the theory of plaintiff’s claim,—is such newly-discovered evidence as, other things being equal, affords ground for a new trial.
    Before Freedman and Russell, JJ.,
    
      Decided December 20, 1880.
    Appeal by the defendants from an order denying a motion for a new trial on the minutes.
    Appeal by the defendants from an order denying a motion for a new trial on the ground of surprise.
    Appeal by the plaintiff from an order granting a ■ new trial on the ground of newly-discovered evidence.
    All these appeals were heard together.
    The action was brought to recover for the plaintiff’s services in selling subscription publications for the defendants upon special contract. His complaint alleged the partnership of the defendants, his employment as canvasser by them in May, 1876, through one S. L. Hall, their agent, which first employment terminated December 20,1877; a second employment December 20, 1877, made with the defendants through their agent, one Davis, “ with the express agreement and condition then made that" the plaintiff should go to Louisiana and Texas at their expense, and there solicit and obtain orders for their publications known as ‘ Picturesque Europe,’ ‘ Turner’s Gallery’ and the ‘ American Encyclopedia,’ and that plaintiff should receive $15 for each and every order he obtained for said ‘Encyclopedia,’ and $4 for each and every order he obtained for said other publications, and in the event that his orders so obtained did not amount to $60 a week for such time as plaintiff was so employed, then that plaintiff was to receive for said service $60 a week ; that under said contract, the plaintiff vfaithfully worked for defendants for twenty-two weeks, from December 20, 1877, to May 20, 1878, and in that time obtained and delivered to defendants eighteen orders in writing for said ‘ Encyclopedia,’ and live hundred and thirty-two orders in writing for said other publications known as serials, for which the plaintiff’s commissions, at the rates agreed upon, amounted to $2,398; that defendants accepted said orders and paid plaintiff on account thereof $857, leaving a balance due and owing therefor of $1,541.” For such sum he asks judgment.
    The defendants “admitted the plaintiff’s employment by them, but alleged that the contract between them was that he should be paid his actual railroad fare to Texas and back, not exceeding the sum of $100, and that for every tona fide subscriber for the “American Encyclopedia” who should accept and pay tor five volumes of said publication, he should, after such acceptance and payment, be entitled to receive from the defendants the sum of $15, and for every tona fide subscriber for the “Picturesque Europe” and “Turner’s Gallery” who should accept and pay for ten parts of such publications, he should be entitled to receive from the defendants the sum of $4. They denied that they made any other agreement with him than this, and alleged that between December 30, 1877, and May 30, 1878, the plaintiff delivered to them a number of alleged subscriptions or orders for the publications aforesaid, but most of them were worthless ; that only one subscriber for the “American Encyclopedia” accepted and paid for five volumes of such publication, and only sixty-nine subscribers to the “Picturesque Europe” and “Turner’s “Gallery” accepted and paid for ten parts of such publications. They further alleged that they had paid to the plaintiff his railroad fare expended by him in their service* and the sum of $906.90, as an advance on account of the commissions which they expected would be due to him on the subscriptions.
    On the trial the plaintiff offered evidence that he obtained subscriptions for thirty-two sets of what was known as the “ Condensed American Encyclopedia,” claiming that he was to have, by his agreement, $4, apiece where the subscribers took that publication in serials, and $6 where they were bound. To this evidence the defendant’s counsel objected on the ground that it was a claim not included in the complaint. The “ Condensed American Cyclopedia” was a publication in four volumes. The 1 £ American Cyclopedia” was a publication in sixteen volumes. The plaintiff’s counsel asked leave to amend his complaint by inserting his claim for commissions upon the £ ‘ Condensed Cyclopedia.” The court denied the motion to amend unless the plaintiff’s counsel would consent that the defendants should have time to amend their answer and produce their witnesses as to the New Orleans orders for “ Condensed Cyclopedia.” The plaintiff’s counsel declined to accede to the condition, and his motion to amend was thereupon denied. The plaintiff’s previous evidence had shown that the orders which he reported for the “Condensed Cyclopedia,” were taken in New Orleans. On a subsequent day of the trial, the plaintiff testified that he went in New Orleans to the officer of Mr. Baker, the agent there of the defendants, and that Mr. Baker requested him to go out and take orders for the “ Condensed Cyclopedia,” and he did. Objection was made by the defendant’s counsel to any testimony as to any contract or arrangement made between the plaintiff and Mr. Baker; as not being alleged in the complaint. The plaintiff’s counsel thereupon stated that of the moneys credited in his complaint, to wit: $857, as having been received by him on account of Ms commissions for the services alleged in the complaint, $145 was in fact on account of his commissions for the sale of the “ Condensed Cyclopedia,” and included by mistake in his complaint in the sum received by him on account of commissions upon the sale of the other serial publications named in the complaint. The defendant’s counsel objected to the admission of this testimony because it made a claim not stated in the complaint and because of surprise. The objection was overruled and an exception was taken. Thereupon the witness testified that the sum of $145 was received by Mm from Baker on account of his commissions for subscriptions for the “Condensed Cyclopedia,” and $720 was for the other publications named in the complaint.
    The jury found a verdict for the plaintiff for $1,602.92. This verdict was made up by allowing the plaintiff a commission of $15 each on eighteen sets of the “ American Cyclopedia,” and $4 each on four hundred and ninety-nine of the serial publications, then crediting $720, leaving a balance of $1,546, to which interest from June 1,1878, was added, amounting to $141.92,—total $1,687.92, which for some reason not apparent was reduced by the jury to $1602.92.
    A.motion for a new trial upon the minutes was made, which was denied. Thereupon, shortly after the trial, the defendants, upon affidavits, moved, before the judge who presided at the trial, for a new trial on the ground of surprise and of newly-discovered evidence. The motion was granted. The order was reversed by the general term, solely on the ground that the motion should have been made at special term. Thereupon, a new motion upon the affidavits was made at special term before another judge on the ground of surprise, which motion, was denied. Another motion was then made before the judge who had presided at the trial, then sitting at special term, on the ground of newly-discovered evidence, which was granted. The affidavit of • the defendants upon the last' motion for a new trial on the ground of surprise, alleged that the Mr. Baker with whom the plaintiff swore he made his arrangement about the “Condensed Cyclopedia,” was at the time of the trial in Chicago, and that the other witnesses whose testimony would have contradicted the plaintiff’s in that regard, were in New Orleans, and that the defendants were taken entirely by surprise by the plaintiff’s testimony, having no information from the pleadings that any such claim would be made. They produced the affidavit of Baker, taken in Chicago, stating that he made no such contract with the plaintiff in reference to the “Condensed Cyclopedia,” as was sworn to on the trial by the plaintiff, but did agree to pay him “for such orders as proved good,” and that all the moneys advanced by him (Baker) to the plaintiff, were advanced on general account and not on account of orders received for the “ Condensed Cyclopedia.” The defendants also produced the affidavit of one Armstrong, taken in New Orleans, to which was appended five receipts made by the plaintiff between May 2 and May 20, 1878, showing the payment to him by “ W. D. Baker, manager,” of $145, on general account of orders reported.
    On the motion for a new trial on the ground of newly-discovered evidence, the defendants produced a letter from the plaintiff to their agent Baker, written in New York and sent to New Orleans, which constituted the newly-discovered evidence. That letter was as follows :
    
      “ jSTew York, June 6, ’78.
    “Mr. D. W. Baker:
    “ Sir:—When I arrived at this place, I found a letter in Mr. Davis’ possession that you sent him the day after I left, saying you had paid me more than my orders were worth. I had received from you and Mr. D. $905. Of this amount you have paid $695.
    I have sent in 521 orders for P. E. and small Oyelo.' 18 large Cyclo. 25 of the first orders taken at Memphis were sent to Lyons, St. Louis, and he has served all but one. This makes 496 sent you, and at $2 they would be $1,000, the 18 Cyclo. at $6 would be $108, making $1,100. According to the lowest scale of liberality extended to canvassers there would be some $400 due me.
    ‘ ‘ As far as you are concerned, I should like a list of each town at once, and at the same time, as you will remember that you told me there would be no difficulty in my having a settlement, how do you reconcile your conversation with me in urging me to continue my labors with you in view of such a report ? I wish a report at once, as 1 have stated above.
    “ GL T. Newhall.”
    
      W. W. 'Badger, attorney, and Wm. A. Beach, of counsel, for plaintiff, among other things, urged:
    I. As to the motion for new trial on the ground of surprise. The evidence was not only not a surprise in fact, but could not be so in any legal sense. Admitting competent evidence to sustain an action or defense, however unexpected by an opponent, affords no ground of “surprise” (Farmers’ Bank v. Sherman, 33 N. Y. 80). The issue of how much was paid, was one of the issues to be tried, as defendants denied the admissions of the complaint, and set up the payments made. The case of White v. Smith (46 N. Y. 418), therefore, does not apply, as shown clearly below in Judge Sedgwick’s opinion. Defendants could not prove the larger sum without proving the smaller one ; hence the issue was open. The evidence was properly admitted, as a- direct rebuttal of the affirmative defense, that they had paid plaintiff $906.90 on the account claimed in the complaint ; whereas, only $720 had. in fact, been paid on that account.
    II. As to "the motion for new trial on the ground of newly-discovered evidence, the letter proves no “new fact,” as required by ¿he rule, nor even any circumstance in conflict with plaintiff’s evidence. The terms of plaintiff’s employment at $15 and $4 an order, are clearly stated in the answer, exactly as in the comp'aint, the only issue being as to whether there were any and what conditions as to payment. The letter does not touch that issue, and is therefore wholly immaterial. As to the amount paid being $905, it states less than plaintiff swore to (including the whole account and the railroad fare $100), which would be $965, for which credit has been given at the trial. On that issue it is not even cumulative. The suggestion that even at $2 and $6 an order—“the lowest rates ever paid to any canvasser”—there was still a large balance due plaintiff, is a simple and reasonable answer to Baker’s complaint, and certainly can have no bearing on the contract admitted in the answer to be at $4 and $15 an order. How .unjust it would be, therefore, after verdict to construe that letter in any way against the plaintiff, or to apply it to issues it does not touch. ■ The following authorities show clearly that some “new fact” should apjjear, of which no evidence was previously given by either side—none such is pretended here: Knoop v. Kammerer (44 How. 450); Hatfield v. Macy (52 How. Pr. 193); Gautier v. Douglas M. Co. (52 Id. 325-9); Cole v. Cole (50 Id. 59) ; Sheldon v. Stryker (42 Barb. 287) ; Brisbane v. Adams (1 Sand. 195) ; Ritter v. Phillips (2 J. & S. 
      289). Also tne following, directly in point, that no new trial should be granted for evidence which might have been discovered by reasonable diligence: People v. Mack (10 How. Pr. 261-3) ; Leavy v. Roberts (2 Hilt. 285-7 ; aff’g S. C., 8 Abb. Pr. 310); Campbell v. Genet (2 Hilt. 291-7). The new evidence must also be such as- would probably produce a different result (Bank of Plattsburgh v. Heaton, 6 T. & C. 37; People v. McGuire, 2 Hun, 269 ; Chapman v. O’Brien, 39-Super. Ct. 244; Woolf v. Jacobs, 45 How. Pr. 403). The direct contrary is here shown.
    
      Douglas Campbell, for defendants, urged, among other things :
    I. As to motion for new trial on the ground of surprise—The opinion below is incorrect in holding that the defendants cannot now allege surprise, because they should have been prepared to prove the payments alleged in their answer. The court in its opinion says, referring to the admission in the plaintiff’s complaint that $857had been paid to him by the defendants: “If the defendants had relied upon that admission, it might have been a question whether upon the trial the plaintiff would be allowed to retract any part of it. That, however, has not been made a question so far as their motion discloses. ’ ’ In their moving papers it appears that this specific objection was taken. Referring to this testimony of the plaintiff regarding the payments to him by Baker, Mr. Campbell says: “That deponent objected to any testimony to contradict the admissions of the complaint.” It is submitted that the admission of this testimony was a surprise under the rulings of the court of appeals. Surprise arises where there is a variance between the allegation of a pleading and the proof (Farmers’ & Citizens’ Bank v. Sherman, 33 N. Y. 80). The court in its opinion seems to hold that the defendants could not.rely upon the admission of the plaintiff because they pleaded a somewhat larger payment. It says that they were bound to be prepared to prove for what their payments had been made. It is respectfully submitted that so far as the sum admitted by the complaint was concerned, they were entitled to rely on that admission despite any allegation in the answer, and were not bound to prove or be ready to prove anything about the payments except as to the difference between $857 and $906, which latter was the payment alleged in the answer. The greater includes the less. If the defendants paid $906, they certainly paid $857. If the question had arisen over the difference between $857 and $906, of course they would have held the affirmative, but no question arose over that. This balance was not insisted on. The defendants waived it by giving no testimony, and simply relied on the admission of payment in the plaintiff’s complaint. The $145 formed part of the $857. The plaintiff having made an admission in his complaint, the defendants were entitled to rely on it, even though they had denied it in their answer, and even if it was the admission of a payment, which the court says was unnecessarily stated. This did not throw the burden of proof on the defendants. “In an action brought upon an account for work, labor and materials, the complaint alleged the amount -of the account to be $541.90, and that there was a balance due, after deducting all payments, of $177.75. Held, that the complaint admitted a payment of $366.15, and that defendant was not precluded from insisting upon this admission by disputing the correctness of the items of the account” (White v. Smith, 46 N. Y. 418). The answer was a general denial, ifo evidence was given of the payments as would have been necessary if the burden of proof had been on the defendant. The court of appeals reversed the decision of the court below, which held that “the defendants should have alleged payment in his answer of $366.15, and proved it, or that he should have conceded on the trial that the plaintiff’s entire claim was $541.90, as stated in the complaint, to enable him to insist that complaint showed he had paid the plaintiff $366.15” (1 Lans. 473). The plaintiff could not deny his own admission (Schreyer v. Mayor, &c., 7 J. & S. 1; Paige v. Willet, 38 N. Y. 28).
    II. As to motion for new trial on ground of newly-discovered evidence : This letter is conclusive upon the plaintiff’s claim that, the $145 was paid him by Baker, for the “Condensed Cyclopedia” orders. . He says he has received $905 (which includes the $145), and has sent in five hundred and twenty-one orders for “ Picturesque Europe ” and “Condensed Cyclopedia,” and eighteen orders for the large Cyclopedia. He makes the whole payment stand on the same basis. It is also very strong evidence upon the main question of the case. If he was to get his pay for every order, in any event, as testified to by him, why did he care about how the orders were turning out. All that he had to do was to stand on his contract. Can any one read this letter and believe his story ? He. does not claim $4 an order, but asks for a report on them, saying that at $2 an order (the customary advance to canvassers before orders are proved), there would be about $400 due him. If his contract was such as he testified to, what was all this to him ?
    
      
       See 46 Super. Ct. 6.
    
    
      
       The following is the opinion of the judge at special term, denying the motion for new trial on the ground of surprise:
      “ Sedgwick, Oh. J.—A new trial is asked on the ground that the defendants were surprised at the trial by the position taken by the plaintiff, that a certain sum of $145 was paid to him by defendants’ agent in New Orleans, not on account of the contract in issue, but upon an independent contract made with that agent, and by the plaintiff’s testimony given in support of that position. In that testimony the plaintiff described the independent contract in such a way that it appeared to correspond in its terms with the terms that he swore the defendants had agreed to in the contract in suit.
      “It seems clear to me that the evidence given could not have been in a legal sense a surprise to the defendants. In their answer they averred that they had paid to the plaintiff ‘ before the commencement of this action, the sum of $906.90, as an advance on account of ■the commissions which they expected would be due to him on the subscriptions aforesaid.’ The defendants held the affirmative of this issue and were bound to prove it. The plaintiff might rest upon his proof of the defendants’ obligation and would be entitled to recover all that he claimed, unless the defendants showed what payments were made.
      “ The plaintiff unnecessarily stated in the complaint that the defendants paid $857. If the defendants had relied upon that admission, it might have been a question whether upon the trial the plaintiff would be allowed to retract any part of it.
      “That, however, has not been made a question, so far as their motion discloses.
      “Instead of relying upon the admission, the defendant pleaded the payments made, which included, of course, in their view, the $145. They were, therefore, bound to be prepared to show all the facts relevant—to show not only the facts of payment, but to meet a contradictory position, that the payment was made upon the independent contract in New Orleans. They were bound to be prepared to show for what the $40, $15, $15 and $75 had been paid, and for what they had not been paid.
      “The motion is denied, with $10 costs.”
    
   By the Court.—Horace Eussell, J.—[After stating the facts as above.]

The. first question is whether the defendants were entitled to a new trial on the ground of surprise.

They certainly had a right to go into the trial relying upon the plaintiff’s statement of his case in Ms complaint, and therefore, upon his admission that he had received the sum stated in the complaint on account of his commissions upon the sales alleged. therein. They were justified in not providing evidence as to matters either conceded in the pleadings or not alleged in them. The learned judge who presided at the trial" so held, when he refused to permit the plaintiff to amend his complaint unless he would consent that the defendants have time to amend their answer and send for witnesses to New Orleans to meet the new issues raised by such amendments, but on a subsequent day the judge permitted the plaintiff to partially accomplish substantially the same thing, by allowing him to withdraw his admission in his complaint as to a portion of the money received by him. The defendants had claimed that that money, as well as the other sum credited, was paid on account of the services alleged in the complaint. Their testimony tended to show it was. The evidence of Baker and other witnesses whose affidavits were subsequently produced, tended also to show it. They were justified in not taking Baker’s and Armstrong’s testimony before the trial as to this, because there then existed no issue in relation to it. The complaint substantially conceded it. I think then they might fairly claim that they were taken by surprise by this testimony, and that it should not have been received for that reason. This error, standing by itself, would justify our awarding the defendants a new trial. Perhaps the injury to the defendants, so far as it turns purely upon this question, could be cured by compelling the plaintiff to stipulate to reduce the amount of his judgment by the sum of $145, as a condition to an affirmance for the balance; but the affidavits introduced, and the letter contained in the statement of facts, present a question which goes to the merits of the whole controversy.

The verdict was one which turned upon the credibility of witnesses. The plaintiff claimed that he was entitled to his commission immediately upon sending in subscriptions, without reference to whether those subscriptions turned out good or bad—that is to say, that he was entitled to a commission of $15 upon the “American Cyclopedia,” upon sending to the defendants the name of a subscriber, even though it should turn out that the subscriber whose name he sent never took or paid for a single volume; and so as to the other serial publications. The defendants upon their part claimed that the plaintiff was not entitled to commissions upon his subscriptions unless they turned out good ; and that the usual test as to whether or not a subscription was good, was the receipt of and payment for five numbers of the Cyclopedia or ten parts of the other serial publications. The plaintiff’s version of the contract rested mainly on his own testimony as to his conversation with Davis. Davis positively denied the plaintiff’s version of the contract. The defendants introduced a great deal of evidence which tended -strongly to show that the greater part of the subscriptions sent by the plaintiff were of no value, because the alleged subscribers did not- take the usual number- of parts to make the subscription “good.” Their evidence also tended to show that they had paid to the plaintiff, for commissions, a sum greatly in excess of what he would be entitled to receive on their theory of the contract.

Without stating particularly wherein, it may be-said that the plaintiff’s letter written from New York June 6, 1878, to D. W. Baker, is somewhat in conflict with his testimony given on the trial. The affidavit of Armstrong tends to show that the $145 paid to the plaintiff in New Orleans, was paid on general account, and not specifically on account of the orders for the “ Condensed Cylopedia.” If the defendants had produced this letter or had Armstrong present to testify at the trial, the jury would have been justified in discrediting the plaintiff’s testimony and adopting the defendants’, in which case the plaintiff should have had no verdict at all. The letter, at least, comes within the rule as to newly-discovered evidence, not alone because it tends to impeach the plaintiff’s testimony given at the trial, but because it is an admission on his part of facts to some extent inconsistent with the theory of his claim.

• The testimony of Armstrong tends to .show that the defendants could have successfully met and combated the plaintiff’s testimony that the $145 paid in JYew Orleans was paid on account of subscriptions to the “ Condensed Cyclopedia” specifically, if they had information from the pleadings that such a claim would be made. So, on the ground taken by the defendants —surprise—the plaintiff’s testimony on that point ought not to have been received. If the plaintiff testified falsely on that subject, as Armstrong’s affidavit tends to show—supposing Armstrong is to be believed —a jury might disregard the plaintiff’s testimony altogether, and so defeat'his entire claim.

Substantial justice can be done only by ordering a new trial.

The result is, that the order denying the motion for a new trial, on the ground of surprise, is reversed, with costs to abide the event.

The order granting a new trial, on the ground of newly-discovered evidence, is affirmed, with costs to abide the event.

And the order denying a new trial on the minutes, is reversed, with costs to abide the event.

Fbeedman, J., concurred.  