concurring specially. I concur in the judgment for the reason that the trial judge was authorized to find that *491the defendant and his counsel could have discovered the alleged newly discovered evidence by the exercise of ordinary care before trial. The defendant contended that he anticipated that the plaintiff would contend only that there was a rescission of the trade of the Chevrolet truck, and did not anticipate that the plaintiff would contend that the Chevrolet truck was merely loaned to the defendant. At the trial the defendant put up two^ witnesses to rebut the plaintiff’s testimony that the Chevrolet truck was loaned to the defendant • and not traded. In the absence of explanation as to why these witnesses were present and available for such purpose other than the defendant’s anticipation of the claim made by the plaintiff, the judge was authorized to find that the defendant anticipated the contention that the Chevrolet truck was loaned and not traded, and that by the exercise of.ordinary care he could have discovered before the trial the evidence allegedly newly discovered.