This is an appeal by the defendant from an order granting plaintiff’s motion for a new trial on the grounds of newly discovered evidence, and of surprise at the trial.
The action was brought by plaintiff on a promissory note executed to him by the defendant for $1,080. The answer contains a general denial of the allegations of the *206complaint, and sets up, by way of counterclaim, plaintiff’s indebtedness to defendant in the sum of $1,557.88, “ for goods, wares, and merchandise sold and delivered to the plaintiff, and for cash loaned, paid out, and advanced to plaintiff, between the nineteenth day of May, 1886, and the eighth day of October, 1888, upon open, current, running, and mutual account by and between the parties hereto.”
The trial of the issues thus joined resulted in a verdict and judgment for the defendant, which the plaintiff moved to set aside and vacate, and to grant a new trial, on the following among other statutory grounds: “Accident and surprise which ordinary prudence could not-have guarded against; newly discovered evidence material for the plaintiff, which he could not with reasonable diligence have discovered.”
The defendant, by way of defense, and in support of his counterclaim, gave evidence tending to show the payment in full of the note sued on, by the sale to plaintiff of a saloon theretofore owned and conducted by defendant in the town of Galt, and by the further sale and delivery to him, at his instance and request, of wines, liquors, and cigars, and the advancement of money at different times extending over a period of more than twenty-eight months, wherefore and by reason of which plaintiff became and is indebted to him in excess of the amount stated on the face of the note in the sum of $377.
The newly discovered evidence set forth in the moving affidavits, identified by the judge as having been used at the hearing of the motion, and not answered by counter-affidavits, is to the effect that, during the whole of the time the plaintiff resided in Galt, he was in the employ of the defendant as the manager of his saloon in that place; that over the door thereof was a sign with the name of the defendant painted thereon as proprietor, and that he was never at any time engaged in any kind of business in that place for himself; that about two months before the saloon was closed and the business discon*207tinned, and something like twelve months subsequent to the alleged sale of the saloon to plaintiff, the defendant offered it for sale as his property; that when the place was closed he was in the possession of it, and at that time he stated to others, in the presence of the plaintiff, who did not dispute it, that the saloon, and the wines, liquors, cigars, and other property therein contained, belonged to him, all of which he, as the owner thereof, afterwards sold and disposed of to persons other than the plaintiff, or removed, or caused to be removed, from the premises; that during all of this time the defendant was the lessee in possession of the premises used as a saloon as aforesaid, and the rent therefor was paid by him, and the licenses which hung upon the wall were issued to him.
Upon this showing in support of the motion, the court, on the grounds stated, ordered that the verdict and the judgment entered thereon be set aside and vacated, and a new trial granted, from "which order this appeal is taken by the defendant.
It is insisted by appellant that if plaintiff had used due diligence he could not reasonably have been surprised by the testimony given by the defendant on the trial of the case, and further, that the new trial was not granted on the ground of surprise.
We cannot adopt the views of appellant in relation to this question, as it is evident from the language of the order that the ground of surprise was considered by the court in passing on the motion, and properly so, too, for the reasons given by the respondent, that “the answer and so-called cross-complaint do not disclose the nature of defendant’s case; that there is no intimation in either of them that he had sold or turned over to plaintiff the saloon at Galt, or that he had sold or furnished him any liquors, beer, and cigars on his account; plaintiff, therefore, could not anticipate the character of the defense.”
The question of a new trial on the ground of surprise is largely one of discretion, and the judge who tried the case is generally in a much better position for the proper exercise of such discretion than an appellate court.
*208It is further claimed by appellant that the alleged newly discovered evidence was incompetent, impeaching, and cumulative, and that if it had been heard at the trial it would not have changed the result.
It appears that the evidence which is claimed to be newly discovered was perfectly competent, because by it plaintiff proposed to prove that the declarations and acts of the defendant were in direct conflict with the testimony given at the trial. It was therefore material to the issue, because it was original, and goes directly to the merits of the case, and was not offered merely for the purpose of impeachment. It would have been competent even if the defendant had not been a witness in his own behalf.
Nor was it cumulative, for the reason that it “is not additional evidence of the same character to the same point.” (Code Civ. Proc., sec. 1838.)
Nor was there any evidence whatever given upon the trial of the case of the declarations and acts of the defendant as set forth in the affidavits. It therefore follows that such evidence was entirely new, distinct, and material to the issue, and it is perfectly fair to presume that if it had been produced before the jury at the trial of the ease, the verdict would have been different. (Stoakes v. Monroe, 36 Cal. 388.)
We would state in this connection that where the question as to whether the evidence is cumulative is involved in doubt, it then becomes a matter of discretion; and unless there has been a manifest abuse of it by the trial court, this court will not interfere.
It is lastly contended that the newly discovered evidence, which is claimed to be material for the plaintiff, could have been, with the exercise of reasonable diligence, discovered and produced at the trial.
It appears that the case was tried at Martinez, in Contra Costa County, and that the individuals whose proposed testimony is contained in the affidavits resided, at the time of the trial, in Galt, Sacramento County, a distance of about one hundred miles from Martinez; *209that the first knowledge that plaintiff had of defendant’s case was obtained from the testimony of the defendant while he was testifying as a witness in his own behalf on the trial of the case; that he did not ask for a continuance, because at no time before or during the trial did he have any knowledge of any witnesses by whom he could establish the evidence set forth in the affidavits, and for the further reason that the facts disclosed thereby did not come to his knowledge until after the trial.
It is therefore evident that the plaintiff possessed no means by which he could discover the evidence which is alleged to be newly discovered, and that he had no knowledge of the evidence, or of the witnesses by whom it could be established, until after the trial.
As we are clearly of the opinion that the ends of justice will be best answered by a new trial, we recommend that the order appealed from be affirmed.
Vanclief, C., and Foote, C., concurred.
The Court.For the reasons given in the foregoing opinion, the order appealed from is affirmed.