
    Griffin vs. Cleghorn, Herring & Company.
    3. Pending a trade which resulted in a sale of guano, statements made by a third person in the hearing of both parties touching the value of the guano, form a part of the res gestee, and are admissible in evidence as such.
    3 Newly discovered evidence, which is merely cumulative, is not ground for a new trial.
    Evidence. New trial. Before Judge IIillyek. Fulton Superior Court. September Term, 1878.
    
      To the report contained in the decision, it is only necessary to add that two of the groxxnds of the motion for new trial were as follows':
    1. Becaxxse the e'oxxrt admitted in evidence the statements of one Stanley that he had used the guano and it was good, [it appeared that while plaintiffs’ agent and defendant were talking about the guano before the sale, one Stanley, who was present, made the remark stated.]
    2. Becaxxse of newly discovered evidence.
    T. P. Westmoreland, for plaintiff in error.
    E. A. Angier, for defendants.
   Warner, Chief Justice.

This was an action brought by the plaintiffs against the defendant upon two guano notes for $70.00 each. The notes contained the following stipulation :' “ It is expressly ■understood that said Cleghorn, Herring & Co. sell said commercial manure as to its quality and effect on crops, on the analysis of A. Means, the inspector, whose brand is on every sack. Said inspector is hereby constituted and recognized as my agent, and I agree to be bound by his inspection as made and indicated by his brand on each and every sack.” The notes were signed by the defendant. The ■defendant pleaded the worthlessness of the guano, and that ■the notes were fraudulently obtained by the false representations of the plaintiffs’ agent as to the stipulations contained therein. On the tidal of the case, the jury found a verdict in favor of the plaintiffs for the amount of the notes with interest. A motion was made for a new trial on the grounds therein specified, which was overruled, and the ■defendant excepted.

There was no error in admitting in evidence what Stanley said in the presence of defendant and plaintiffs’ •agent when they were talking about the guano previous to the sale thereof, .(to-wit) “ that it was good guano, that he had used it.” This was admissible as part of the res gesteen Code, §3773.

By the terms and stipulations contained in the notes, the defendant was bound to pay for the guano-, and the only question in the case was whether the notes as written were fraudulently procured from the defendant without his reading, or knowing what was in them. In relation to this point in the case, the evidence was as conflicting as it well 'could be. The jury thought proper to believe the plaintiffs’ evidence. The defendant- now seeks to obtain a new trial on the newly discovered evidence of Smith, who, from the statement in his affidavit, will substantially corroborate the evidence of the defendant as to the manner in which the notes were obtained from him. The difficulty in the way of the defendant’s obtaining a new trial on this ground is, that the evidence of Smith is only additional to that of the defendant himself, merely cumulative evidence of that which was offered by the defendant in relation to the same point on the trial of the case,, and therefore is not a good ground for a new trial. Code, §3-716.

Let the judgment of the court below be affirmed.  