The Republic Truck Sales Corporation sued C. C. Padgett upon a note payable to the Georgia Republic Company Incorporated and indorsed to the plaintiff. The verdict was in favor of the plaintiff, but thereafter a new'trial was granted on the motion of the defendant, and the plaintiff excepted.
The only grounds of the motion for a new trial which need be considered have reference to the alleged newly discovered evidence. The note was for $5,000 and was made payable to the Georgia Republic Company Incorporated. The evidence for the plaintiff holder showed that the indebtedness for which the payee had indorsed the note as collateral was $4217.27, besides interest. Tlie plaintiff’s witness establishing this fact was fully cross-examined^ When the evidence closed, a finding was demanded that this amount was correct, and a verdict was returned accordingly. This was so undoubtedly true that a discussion of the evidence in full seems wholly unnecessary. The plaintiff company was a manufacturer and seller of trucks. The payee of the note was a dealer and purchaser from the plaintiff, and pledged the note sued on as a guaranty against loss by the plaintiff growing out of their relation. After several carloads of trucks had been shipped to the payee but not all delivered, it was adjudicated a bankrupt, with a consequent liability to the plaintiff in the amount of the verdict, for “ interest and freight charges and demurrage and storage on those trucks,” as stated by the plaintiff’s witness Stuart.
L. K. Rushing was sworn as a witness in behalf of the defendant, as was also T. E. Turner. The evidence of the former was apparently for the purpose of letting in the defense which the maker would have had against the original payee, while the evidence of *477the latter, who was an officer of the Georgia Republic Company, related directly to the nature of the indebtedness of this company, the payee, to the plaintiff, though without exceeding particularity. From these witnesses is produced the alleged newly discovered evidence.
The factory of the plaintiff is located at Alma, Michigan. R. F. Stewart, who gave evidence for the plaintiff in regard to the amount of the debt owing to the plaintiff by the Georgia Republic Company, testified: “ This amount’ of $4217.27 due us by the Georgia Republic Company is made up of interest and freight charges and demurrage and storage on those trucks [trucks that had been sold and shipped to the Georgia Republic Company] ; the ears that we took back, I think a couple of them went up in Tennessee and two went to South Carolina (I don’t mean carloads,— single trucks), and one or two went to Florida; I didn’t send any of them back to Alma, either by carloads or individually. I know the freight on three carloads of trucks from Alma to Macon, and that is $870.31.”
In the affidavit of Rushing upon which the motion is in part founded it is deposed: “that aborit the month of September, 1921, deponent, as one of a committee representing certain stockholders in the Georgia Republic Companj' Incorporated, of Macon, Ga., which companjr had gone into bankruptcy, for the purpose of ascertaining how much and the nature of the assets of said company had gone into the bankrupt court, and of ascertaining what amount the said company owed to the Fourth National Bank of Macon, Ga., with a view of liquidating and paying said Fourth National Bank, and deponent went to Macon, Ga., and while there called upon Messrs. Jones, Park & Johnston, attorneys at law, who represented at said time the said Fourth National Bank and the Republic Truck Sales Corporation of Alma, Mich., for the purpose of ascertaining how much the said Georgia Republic Company Incorporated owed to the said Republic Truck Sales Corporation. Deponent says that upon deponent.- making said inquiry of said attorneys, he was handed by them the attached statement (hereto attached, marked ‘A’), as being a correct and full statement of the amount that said Georgia Republic Company Incorporated was indebted to said Republic Truck Sales Corporation of Alma, Mich. Deponent says that said statement so far as the *478typewritten matter contained therein is exactly as the same was handed to deponent by said attorneys, the other words and figures written thereon being done by deponent in making calculations, etc. Deponent says that the defendant in above-stated case, C. C. Padgett, was not aware of the fact that deponent had the said statement before the trial of said case, and, so far as the deponent knows, had no notice of the existence of any such statement, nor did the attorney representing said C. C. Padgett in said case have any knowledge or notice,' so far as known to deponent, of the existence of said statement prior to the trial of said case.” In the statement attached is contained the item “ Freight charge for return of trucks to Alma, Mich., $993.10.” It was thus sought by the movant to establish that this item was unjust, in view of the evidence of Stewart that none of the trucks were returned to Alma.
The exact date of the filing of the suit is not shown, but it appears that it was made returnable to the September term, 1921, convening on the first Monday in September. It will be noticed that it was during this month and long before the trial that the statement including the item mentioned was given to Rushing by the plaintiff’s attorneys. In rebuttal it is deposed by R. F. Stewart, the agent of the plaintiff already mentioned, that the statement which was furnished to Rushing by the plaintiff’s attorneys was made up by him on June 1st (1921?) when he “had simply gotten up a statement for the freight charges that would be on a return of the trucks to Alma. At that time he had not determined whether to ship the trucks to Atlanta or some other point that he finally determined to ship the trucks to Atlanta at a transportation charge of $455, and that this and certain other items were included in the amount of the indebtedness shown upon the trial in lieu of the item of $993.10. It is therefore shown that this item was excluded from the testimony of Stewart upon the trial, and that it did not enter the verdict, but that the other items mentioned were included instead, amounting to less, with the result that the indebtedness claimed by the plaintiff against the Georgia Republic Company in the trial, for which the verdict was rendered, was less than that which was shown in the statement procured by Rushing from the plaintiff’s attorneys. These facts as stated by Stewart are fully consistent with the affidavit of *479Bushing, the truth of which the plaintiff admits, and thus completely explains. We think therefore that the effect of the newly discovered fact produced through the affidavit of Bushing was completely rebutted by the undisputed proof of additional facts consistent with its admitted truth, but pointing to a different conclusion.
Even if there were possibly some items included in the indebtedness claimed upon the trial as to the necessity of which as a charge by the plaintiff against the Georgia Bepublic Company an issue might have been made, none was made, and, as seen, the onus was upon the defendant to prove that the debt collaterally secured was less than the amount of the note, and likewise less than the amount stated by the plaintiff. In other words if the sum which the plaintiff through its evidence showed as the debt for which it claimed to hold the note as security was incorrect or unjust in any of its items, it was incumbent upon the defendant to show this fact, it not being disclosed by any of the evidence for the plaintiff.1 The presumptions in relation to this issue were with the plaintiff, and no evidence adduced upon the trial removed it.
The evidence offered as newly discovered and coming from the witness Turner was only a slight amplification of his testimony given upon the trial. Both relate to the indebtedness to the plaintiff of the Georgia Bepublic Company. This witness testified upon the trial that the note sued upon was “put up as collateral to cover a certain proportion of the purchase price on $35,000 worth of trucks that were to be shipped, the proportion referred to being roughly 15 per cent.” “ The note was turned over to the plaintiff to make them safe in shipping the $35,000 worth of trucks . . which were to be shipped with bill of lading attached, and to assure them that the bill of lading would be lifted when the trucks arrived. Two carloads of the trucks were shipped; one of them was lifted, the other was not. There was about $5,218 worth of trucks in each car. The Georgia Bepublic Company Incorporated went into bankruptcy March 11, 1921; its assets were sold out by the trustee in bankruptcy.” The affidavit of this witness attached to the motion is a mere repetition of his evidence at the trial, except a further statement as follows: that the carload of trucks not lifted by the Georgia Bepublic Company “ was taken possession of by the said Bepublic Sales Corporation and disposed of by said *480corporation. As the price list was unchanged from the date of invoice to the date that the Republic Sales Corporation took over the four trucks which were not lifted is evidence that there could not have b.een any depreciation in value of said trucks, and for these reasons deponent can see no reason why the said C. C. Padgett is indebted in any amount to the plaintiff in said case upon the said note sued upon.” The affidavit fails completely to show that the Georgia Republic Company is not indebted to the plaintiff in some amount, and no data whatever is given by which a jury could determine what amount the indebtedness was, if less than the suni the plaintiff claimed.
From the foregoing analysis of the newly discovered evidence we think that if a new trial were had, it could not possibly change the result. If we add to the evidence adduced upon the trial that which is offered in the motion, including the counter-showing, the identical verdict would still be demanded for the plaintiff. Therefore, as a matter of law, the motion was without merit. We reach this conclusion independently of other reasons ajDpearing in the headnotes, but we think that the newly discovered evidence was impeaching and cumulative only. Each of the witnesses from whom it is produced was sworn and testified in behalf of the defendant upon the trial, where the question of the nature and amount of the debt collaterally secured were dealt with, and upon which the plaintiff’s witness Stewart was cross-examined at length. Without the establishment of some very extraordinary circumstance as a reason why the evidence produced in the motion was not elicited during the trial, a court would -be unwarranted in ordering a new trial merely for the purpose of further examination. See Holder v. Farmers Exchange Bank of Stillmore, ante, 400.
The joint deposition of the defendant and his sole counsel during the trial with reference to the matter contained in the affidavit of Rushing showed the following: that each of them exercised all due and ordinary diligence at and before the trial to discover all evidence favorable to the defendant in said case, but failed to do so until after the trial and at or about the time of the procurement of the witness’s affidavit, and that it would have been “ almost impossible” for either of them to have discovered the evidence before the trial, “for the reason that said suit was an ordinary suit on the said note sued upon, it not appearing from *481said suit that said note had been transferred to the plaintiff for the purpose of securing it for any particular debt or liability, and that said fact did not develop until the trial of said case, when a witness for the plaintiff testified that said note was taken by plaintiff to secure it against loss for freights, demurrage, or storage that would be incurred by it for trucks sold to be shipped by it to Georgia Republic Company Incorporated.” Their separate depositions in regard to the alleged new evidence produced through Turner are not more specific.
These general statements of the attorney and the movant do not disclose any extraordinary circumstance preventing the development during the trial of the evidence coming now from Rushing and Turner, who were sworn thereat. The fact that Turner testified by depositions would hardly change the rule. The question now presented was one of legitimate inquiry when the deposition was taken, and no sufficient reason is shown why further examination upon the point was not made at that time or why the issue was not then anticipated. It is clearly immaterial that a part of •Turner’s evidence was given by depositions, when it appears that he was then examined and testified in a general way touching the same matters in relation to which his newly discovered evidence is offered, and when too the last mentioned, as wé have shown, cordel not possibly have presented any issue affecting the amount of the plaintiff’s recovery.
The order of the judge shows that he based his action granting the new trial solely upon the newly. discovered evidence coming from T. E. Turner, but we have though it proper to pass also upon the ground of the motion based on the affidavit of Rushing, because if the judgment granting the new trial had been right for any reason, it would have been our duty to give judgment of affirmance.
For the several reasons indicated, a new trial should not have been granted. Our conclusions are based upon the well-established principles announced in the headnotes and the authorities there cited. It only remained to apply them to the facts of this case. It is quite true that the grant of a new trial will not be disturbed if there was a basis for the exercise of a discretion. There can be no exercise of discretion, however, unless there are facts upon which it may operate. There was nothing in the motion in this *482case 'warranting a discretionary action. As a matter of law, from the facts disclosed, a refusal of the motion was demanded. To state it differently, but inaccurately, as is oftentimes done, the grant of a new trial when a contrary ruling is demanded amounts to an abuse of discretion, and in such a case the grant will be reversed.
Judgment reversed.
Jenlcins, P. J., and Stephens, J., concur.