Holdridge v. Hamilton

Warner, C. J.

The error assigned in this case to the judgment of the Court below, is the refusal of the Court to grant a new trial upon the facts set forth in the record. The defense of the defendants against the payment of the note sued on, was the leaky condition of the store-room, for the rent of which the same was given. In our judgment, the weight of the evidence (independent of the newly discovered testimony) was in favor of the leaky condition of the store-room at the time the defendants occupied it, but we should not have interfered with the verdict of the jury on that ground alone. The evidence of the Cherrys, that the roof did not leak after they occupied it, is accounted for by the newly discovered evidence of Faulkner, the tinner, who states, in his affidavit, that early in February, 1867, he soldered a number of open seams *678in the gutters of said building, on each side of it, in addition to the holes made by the firemen. This newly discovered evidence would have explained why the store-house did not leak after the Cherrys moved into it, and have reconciled the apparent conflict between their evidence and the evidence for the defendants as to the leaky condition of the house when the defendants occupied it. The seams in the gutters were open when the defendants occupied the house, but were stopped by Faulkner, the tinner, before or about the time the Cherrys went into possession of it. This newly discovered evidence was not merely cumulative, but establishes a material, independent fact, which explains why the house may have leaked when occupied by the defendants, and .not have leaked when occupied by the Messrs. Cherry, the subsequent tenants. Upon a review of the facts contained in this record, we are of opinion that a new trial should have been granted, and that the Court below erred in refusing to do so. Let the judgment of the Court below be reversed.