
    Hans J. Larson, Appellee, v. Meyer & Meyer et al., Appellants.
    No. 44895.
    November 21, 1939.
    
      James E. Coonley and Uhlenhopp'& Ublenbopp, for appel-lee.
    Wayne F. Kemmerer and Leming & Hobson, for appellants.
   Bliss, J.

Tbe chief complaint of appellants is that tbe court erred in denying a new trial based upon tbe ground of newly discovered evidence. To better understand tbe ruling of the court, a brief statement of tbe facts will be helpful.

Tbe plaintiff is an unmarried laboring man, 72 years old at tbe time of tbe trial, who bad lived about tbe town of Dows and worked at common labor for over 20 years. He bad acquired a modest amount of property. From 1929 to 1936 be bad made bis borne with tbe defendant, B. H. Meyer, commonly called Boman Meyer. During all, or tbe greater portion of this time, Meyer lived on a 40-acre tract partly within tbe corporate limits of tbe town. Tbe plaintiff received no wages and paid no board. He milked tbe cows, fed tbe chickens, cut wood, fixed fences, and did tbe chores generally about tbe place. He occasionally received modest honorariums from Meyer, by way of vacation and business trips, at tbe expense of tbe latter.

Tbe defendant Meyer & Meyer was a partnership, composed of B. H. Meyer and bis nephew, Byron Meyer, and was engaged in buying livestock. Tbe firm, or Boman Meyer, also conducted a sales barn. When tbe banks were closed in early March, 1933, Boman Meyer told tbe plaintiff that tbe firm was in need of cash, but bad bad proffers of help. Tbe plaintiff told him that'he bad lately withdrawn $2,000 from a Spirit Lake Bank, and bad it in paper currency, and if it would aid the firm be would loan tbe money to it. Tbe offer was accepted, and tbe firm through B. H. Meyer, executed its note of $2,000 to the plaintiff, on March 4, 1933, payable 10 days later. After tbe bank bad reopened, and on March 28, 1933, Boman Meyer claimed that be withdrew $2,000 and tbe accrued interest on tbe note, in cash, from tbe firm’s bank account, and tendered tbe money to plaintiff, with tbe statement, that tbe firm no longer needed tbe money. He; testified that plaintiff rather demurred to accepting tbe money, and inquired if tbe firm could not use it for a longer time. Roman said be told bim tbat tbe firm did not need it, but tbat be, personally, could use tbe money in making a payment on tbe 40 acres, wbicb be bad bought in February, 1933, but tbat if this was done tbe firm note would bave to be canceled and returned, and bis own individual note substituted tberefor. He testified tbat tbe plaintiff accepted tbe proposition, and told bim be would look up and return tbe firm note, and tbat it could be considered as canceled and tbe firm debt discharged. Roman Meyer further testified tbat about a year later be told plaintiff that be still bad bis money, and tbat be was going to pay it on tbe purchase price of tbe farm, or to reduce a mortgage indebtedness thereon, if plaintiff bad no objection. He stated tbat plaintiff said be bad no objection and for bim to so use tbe money. Defendants pleaded this alleged payment of tbe note as a defense to tbe suit. Meyer said that on several occasions, after tbe alleged arrangement with plaintiff, be asked for tbe return of tbe firm note, and offered to execute bis note. Of these occasions, be testified:

“I bad other conversations with him after that time. I kept a record of these conversations in an individual account book but tbe account book has been destroyed. I asked bim several times to get tbe note for me, tbat I would like to straighten it up, but be never answered me. He would always walk away, except tbe first time, and at tbat time, be said it was all right. I made an entry every time I bad a talk with bim about the $2,000. * * * I bad other conversations with Mr. Larson on two different occasions. When I asked bim to look up tbe note, tbat I wanted to get it straightened out then again in 1936 in tbe Fall, I told bim things weren’t looking good for me, that I didn’t want him to lose the money, that Í would turn tbe property over to him, so tbat be would not lose bis money. I offered to deed my equity to bim. He said ‘I don’t want tbe land, I want tbe money.’ I said, ‘I haven’t got tbe money and things don’t look so good, and it might take quite a while to get it, and I would rather do it tbat way to protect you.’ He made no answer.”

He testified tbat on one occasion tbe plaintiff said be bad lost or mislaid tbe note.

The plaintiff denied each and all of the above-stated transactions, wbieb occurred subsequent to the execution of the note. He testified that Roman Meyer never mentioned the note to him until in August, 1936, when he asked to substitute his note for the firm note, and plaintiff refused. He testified that Roman Meyer never tendered payment of the note, or offered to deed him property, or to secure him in any way, at any time. He stated that the transaction was handled, for the firm, entirely by Roman Meyer, and that he never talked to Byron Meyer about it until after the action was brought.

The plaintiff, alone, testified in support of his case, and offered the note sued on in evidence. The testimony of Roman Meyer was supported by the testimony of Fred M. Bump, a former employee of his, and by that of Mrs. Bump. They testified to separate occasions when plaintiff allegedly made admissions damaging to his cause. Bump stated that, about October 1, 1936, the plaintiff told him:

“He told me Roman owed him this money and he had nothing to show for it, that Roman wanted to sign the property over but he said he didn’t want the property, he wanted money. I said to him, ‘Hans, you better take it. You better take the property. There is a small mortgage of $1500 against it. ’ * * * I had another conversation with him one evening when he came over to our place to fetch back some jars the missus had given him fruit in. Hans said he was left with no money, Roman had left him owing this money, and the stockyard money, and he put it in the farm and now he didn’t have nothing to show for it. My wife was present at the conversation, just'we three. * * * I asked Mr. Larson whether Byron Meyer or Meyer & Meyer owed him anything. He told me that the money, that $2,000 was put in the farm, he let Roman have it. He told me that he let Roman have it to put in the farm, that Roman wanted to sign the property back to him, that he had nothing to show for it. He said Byron didn’t owe anything. It was Roman that owed him the money.”

Of the latter occasion, late in the fall of 1936, Mrs. Bump testified:

“One evening Hans Larson spoke about the $2,000 loan. He said Mr. Roman Meyer owed him $2,000. He said that Byron had had it, that he could have had it at one time, that Roman came borne and said to bim tbat Byron bad paid tbat money and wbat did be want to do witb it. He said tbe bank wasn’t good and be didn’t feel like keeping it around. Tbat Roman said to him, if yon don’t want it and don’t want to use it, and want to let me have it, I will pay off tbe mortgage on tbe farm and be said, ‘I thought Roman was all right and if be wanted it, I could get it, tbat tbat was a good place for it. ’ So, be says, ‘I let Roman have it and now it looks like I ain’t going to get it. It is gone. ’ He said be thought tbat as long as Roman was there, be would get it when be needed it, but now it looks like it was gone and it left bim bard up.”

Tbe jury evidently thought tbe testimony of tbe plaintiff was more worthy of belief than tbat offered by tbe defendants, as they returned a verdict of $3,250 for bim.

In their motion for new trial tbe defendants claimed newly discovered evidence, and attached tbe affidavits of three persons who each swore tbat on separate occasions admissions against bis interest were made by appellee. One affiant stated tbat between July 1 and October 1, 1934, plaintiff told bim he bad loaned Roman Meyer $2,000 to make a payment on bis 40-aere farm, and tbat be bad no note to evidence tbe loan. Another swore tbat between September 1, 1936, and January 1, 1937, plaintiff told bim Roman Meyer owed bim a large sum of money, and tbe latter asked bim to take over tbe 40-acre farm, and that be refused, but wished later be bad accepted. Tbe third affiant stated tbat in October or November of 1937 tbe plaintiff told bim tbat be invested $2,000 in tbe 40-acre farm owned by Roman Meyer. This person bad talked to Byron Meyer before tbe trial but this matter was not discussed. No question was raised as to tbe diligence of appellants.

In its ruling tbe trial court stated:

“I am of tbe opinion after examining the three affidavits setting forth tbe newly discovered evidence, that such evidence, if given, is not of such weight and effect as to be at all likely to produce a different result if a new trial is bad. Nearly every circumstance set forth in these affidavits was testified to, in substance, at least, by tbe two witnesses, Mr. and Mrs. Bump, both of whom were disinterested witnesses. Their testimony, however, was much stronger and very more directly to tbe point in controversy than the evidence set forth in these affidavits. * * *

“I am reluctant about granting a new trial in any case unless it is clearly shown that an error has been committed and an injustice will result. I am of tbe opinion that the showing made and the reasons urged in this case are insufficient to warrant the Court in setting aside this verdict and granting a new trial.”

I. The motion for new trial was filed under 1935 Code, section 11550, paragraph 7, which provides:

“The former report, verdict, or decision, * * * shall be vacated and a new trial granted, * * * for the following causes affecting materially the substantial rights of such party. * ® *

“7. Newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial.”

The italicized words furnish the interpretive key to the section. As stated in Dobberstein v. Emmet County, 176 Iowa 96, 103, 155 N. W. 815:

“* * * the court will grant the rehearing much more readily than where the evidence leaves little room for doubt that the judgment as rendered effectuates justice.”

Were the substantial rights of the appellants materially affected by being denied a new trial of the issues, with the additional testimony? The test has been repeatedly stated by this court in language, sometimes differently worded, but uniformly of the same import. In Rockwell v. Ketchum, 149 Iowa 507, 517, 518, 128 N. W. 940, the court stated it thus:

“It [new trial] ought not to be granted unless the newly discovered evidence is such as likely will lead to a different result. * * * or in any case where a different result is not reasonably probable.”

In Walterick v. Hamilton, 179 Iowa 607, 161 N. W. 684, the phrase last quoted was used. In Simons v. Harris, 215 Iowa 479, 482, 245 N. W. 875, this language was used:

“The overruling of such motion on the ground of newly -discovered evidence is a matter that primarily rests in the sound discretion of the trial court, and should not be granted unless tbe newly discovered evidence will probably lead to a different result.” (Italics onrs.)

In Henderson v. Edwards, 191 Iowa 871, 873, 183 N. W. 583, we said:

“If it can be said that, in all probability, the newly discovered evidence will not affect the result in case of a second trial, then the motion should be denied.”

In the last cited case, this language also is found:

“If the proffered evidence presents material facts germane to the issue in controversy, which, considered with the evidence presented on the trial, might cause a jury to take the other view, then the motion should be sustained.” (Italics ours.)

We think the word “might'” states the rule too broadly. The question is not one of possibility, but rather one of reasonable probability, or likelihood. See also City of Des Moines v. Frisk, 176 Iowa 702, 158 N. W. 590.

In Harber v. Sexton & Son, 66 Iowa 211, 216, 23 N. W. 635, 637, the court said:

“* # * we do not think that the alleged newly-discovered evidence, if admitted upon another trial, would change the result. * * * In our opinion, the introduction of the alleged newly-discovered evidence could have but little weight, and would not have led to a different result. ’ ’

II. Further support for the court’s ruling is the fact that the new evidence is clearly cumulative. Not cumulative, as to the incident and occasion, testified to by Mr. and Mrs.' Bump, but cumulative as to the point or issue concerning which they testified. In German v. The Maquoketa Savings Bank, 38 Iowa 368, 369, the court stated:

“It is exceedingly difficult, if not impossible, to furnish a general definition of cumulative evidence, which in a given case will materially aid in determining whether particular testimony offered falls within or without that class.

“In 1 Greenleaf on Evidence, §2, it is said: ‘Cumulative evidence is evidence of the same kind, to the same point. Tims, if a fact is attempted to be proved by the verbal admission of the party, evidence of another admission of the same fact is cumulative.’ ” (Italics ours.)

Tbe rule from Greenleaf was again followed in Wayt v. B., C. R. & M. R. Co., 45 Iowa 217, 220.

Tbe illustration given by G-reenleaf exactly parallels tbe situation in this ease. Here tbe Bumps testified to two separate occasions wben tbe plaintiff allegedly admitted that it was Roman Meyer wbo was indebted to him, while tbe affiants swear to other admissions of tbe same fact. Their testimony, if it would be as alleged, would unquestionably be cumulative. Tbe fact that each of tbe affiants described a different transaction from that testified to by tbe Bumps, would not save their testimony from being cumulative. In so far as Means Bros. v. Yeager, 96 Iowa 694, 697, 65 N. W. 993, may bold to tbe contrary it is overruled.

III. In a matter of this kind a large discretion is lodged in tbe trial court. Tbe trial judge by bis long experience at tbe bar and on tbe bench was eminently qualified to pass upon this question, and it is our judgment that be exercised bis discretion wisely and judiciously. He bad tbe witnesses before him, be could observe tbe reaction of tbe jury to their testimony, and was in a better position to judge of what another jury might do than we are able to do. As stated in Alger v. Merritt, 16 Iowa 121, 127:

“It is always difficult for tbe appellate tribunal to more than approximate to a knowledge of tbe facts as they actually occurred at tbe trial. The judge at nisi prius has a much better opportunity for seeing and judging bow tbe testimony given and that afterward discovered bears upon that issue, to determine whether tbe facts offered are similar or dissimilar.”

Appellants’ counsel has ably presented this case, and it is conceded that be was diligent in bis investigation of tbe facts, but every trial lawyer knows that after tbe trial of any case that has been provocative of publicity, information very often comes to tbe attorneys or parties, on both sides, of evidence which would have been material and perhaps helpful. Tbe missed opportunity is but one of tbe fortunes of legal warfare, but it is not necessarily a ground for relitigating tbe issues.

We have carefully examined all other assignments and find no errors therein. The judgment of the trial court is therefore affirmed. — Affirmed.

OliveR, C. J., and Hale, Richards, Sager, Hamilton, Stiger, Mitchell, and Miller, JJ., concur.  