
    [No. 7,126
    Department Two.]
    June 30, 1882.
    AH JACK v. TIDE LAND RECLAMATION CO.
    New Trial—Accident—Surprise—Newly Discovered Evidence.—An order denying a motion for a new trial on the above grounds affirmed.
    Appeal from a judgment for the defendant, and from an order denying a new trial in the Fifteenth District Court of the City and County of San Francisco.
    The action was brought to recover an asserted balance claimed to be due on a written contract for labor performed on the reclamation works of defendant, and the defense was that the claim of plaintiff was based on certain false and fraudulent estimates of work, and that he had been overpaid under said contract.
    There was a general verdict and judgment for the defendant, and no bill of exceptions or statement. Plaintiff claimed as grounds for new trial that he was surprised by the testimony of a witness at the trial; and also relied upon newly discovered evidence specified in his affidavits.
    
      Lyman I. Mowry, for Appellant.
    
      G. W. Gordon, for Respondent.
    Appellant’s counsel, if legally surprised, should have made a motion for a continuance on that ground, and can not, after taking the chances for a verdict in his favor, now claim that it entitles him to a new trial. (Live Yankee Co. v. Oregon Co., 7 Cal. 42; Schellhous v. Ball, 29 id. 609; Klockenbaum v. Pierson, 22 id. 163.) The newly discovered evidence is merely cumulative. (Stoakes v. Monroe, 36 Cal. 388; Armstrong v. Davis, 41 id. 499; Russell v. Dennison, 45 id. 339; 
      Wright v. Carillo, 22 id. 606, 607; People v. Anthony, 56 id. 399; Klockenbaum, v. Pierson, 22 id. 163.)
   The Court :

Appeal by plaintiff from the judgment and order denying his motion for a new trial. The cause was submitted on the points and authorities of respondent, none having been filed by appellant.

The motion for a new trial was made on the grounds of accident, surprise and newly discovered evidence, which the plaintiff could not with reasonable diligence have discovered and produced at the trial The motion was heard on affidavits. We have examined them and find nothing therein showing any error of the Court in denying plaintiff’s motion for a new trial.

The judgment and order are affirmed.  