
    Byron Giles vs. Carrie E. Robinson and Myron W. Robinson. Carrie E. Robinson and Myron W. Robinson vs. Byron Giles.
    Lincoln County.
    Decided March 8, 1916.
    These cases grew out of the same transaction and were tried at nisi and argued before the Law Court together. Byron Giles, of Boothbay, brought suit against Carrie E. Robinson and Myron W. Robinson, summer residents of Boothbay Harbor, to recover a balance claimed to be due from constructing a concrete wall across the mouth of the cove, the design of the wall being to make the cove a swimming pool. Carrie E. Robinson brought action against Byron Giles to recover back money paid on account of the work and for other damages. In the discussion of the case Giles will be alluded to as plaintiff, and Robinson as defendant. The questions presented involved issues of fact. The jury found a verdict for the plaintiff, Giles, in each case, and the only question before us is, whether there was sufficient evidence to warrant the jury, if they believed the plaintiff’s testimony, to render a verdict in favor of his contention.
    But since the argument of these cases at the Law Court, a motion for a new trial has been filed, on the ground of newly discovered evidence, and the testimony taken and presented to the court for consideration in connection with the evidence in the general motion. The plaintiff urges that this evidence is not newly discovered on the defendants’ own statement, that “it did not exist at the time of the trial.” But the testimony shows that it did exist at the time of the trial. The quality of the work and material was there in the wall, but could not at that time be seen, nor ascertained by physical examination nor proved by any testimony available to the defendants, as, at that time, the plaintiff, the one knowing the facts, denied any deficiency in the workmanship and material, which time and tide have since revealed.
    We are accordingly of the opinion that the motion upon the newly discovered evidence should be sustained and a new trial granted.
    Motion for new trial on newly ¡discovered evidence sustained. New trial granted.
    
      Hon. Cyrud Tupper, and James B. Perkins, for Giles.
    
      Hon. A. S. Littlefield, for Robinson.
     