
    Harry Grossman vs. Allen W. Tibbetts.
    Penobscot County.
    Decided February 18, 1918.
   This is an action brought by the plaintiff, Harry Grossman, to recover from the defendant certain damages for breach of an implied warranty in the sale of personal property by the defendant to the plaintiff. The only question involved at the trial- was whether or not the defendant sold to the plaintiff the goods in question. A verdict was rendered for the plaintiff in the sum of two hundred nineteen dollars and sixty-one cents by the jury at the January term of the Supreme Judicial Court, 1917. After verdict the defendant filed a general motion for new trial, and several months afterward, in addition thereto, filed a motion for new trial on the ground of newly discovered evidence.

An examination of the testimony clearly shows that the general motion should be denied. A pure question of fact was in issue and the evidence was conflicting, but not so one-sided as to warrant the disturbance of the verdict. Nor do we discover any reason for grant? ing a new trial under the alleged newly discovered evidence. First; we think the circumstances are quite conclusive that this evidence could have been discovered before the trial, with the exercise of due diligence. Second, the evidence discovered is not pertinent to the material issue involved. Third, we should hesitate to say, if it had been offered .and admitted at the trial, it would have changed the result.

For these reasons we think the entry should be: Motion for a new trial overruled. Motion for a new trial on newly discovered evidence overruled. Simon J. Levi, for plaintiff. Wilfred G. Conary, for defendant.  