
    ADAMANT MANUFACTURING COMPANY v. JACOB PETE.
    
    June 27, 1895.
    Nos. 9431—(197).
    New Trial — Surprise—Newly-Discovered Evidence.
    Motion for a new trial, on the ground of surprise and newly-discovered evidence, held properly refused.
    Appeal by defendant from an order of the municipal court of Duluth, Winje, Special Judge, denying a motion for a new trial.
    Affirmed.
    
      A. J. Thomas, for appellant.
    
      Alford c& Hunt, for respondent.
    
      
       Reported in 63 N. W. 1027.
    
   BUCK, J.

This is an appeal from an order of the court below denying the defendant’s motion for a new trial, upon the grounds of surprise and newly-discovered evidence. So far as the record presents, proof of newly-discovered evidence, we think it is merely cumulative, and therefore not a good ground for granting a new trial, within, the well-settled rules of this court. Nor does the appellant present sufficient grounds for a new trial upon the ground of surprise.

In the defendant’s affidavit used upon the motion for a new trial, he alleges that, after this action was commenced, one Norberg, tbe principal witness for tbe plaintiff, and who was in tbe employ of defendant at tbe time of tbe making of tbe contract sued upon, said to defendant that, if be (Norberg) was called to tbe stand on tbe trial of tbe action, be would testify that, when be made tbe. contract upon which tbe suit was brought, be was acting for himself, and not for tbe defendant, and that the terms of tbe sale as agreed upon were not sucb as were in tbe contract; that be did not read tbe order before signing; that defendant was not to pay for tbe material until it was sold; that defendant did not know anything about tbe order; and that it was not signed by defendant’s authority.

All of tbis was material testimony upon tbe matter in controversy, and upon tbe trial Norberg testified directly contrary to what tbe defendant alleged be had told him that be would testify to; yet the defendant, who was present on the trial, and sworn in bis own behalf, omitted to testify to any of these statements so made to bim by Nor-berg after tbe action was commenced. To grant a new trial upon tbe ground of surprise under sucb circumstances as these would be encouraging gross negligence, and the court very properly refused it..

Tbe order denying tbe motion for a new trial is affirmed.  