(dissenting). " I dissent. Tbe sole question presented on this appeal is whether tbe trial court erred in denying plaintiff’s motion for a new trial based on tbe ground of accident or surprise, which ordinary prudence could not have guarded against.
Tbe undisputed evidence shows that on September 15, 1913, tbe plaintiff executed and delivered to the local sales agents óf tbe defend*305ant an order or purchase contract for a certain gas-tractor plowing outfit. The order specifically provided that it was “taken subject to approval, and is to be sent to the company for acceptance or rejection.” The defendant refused to sell the machinery upon this order or purchase contract, and a new order or purchase contract was prepared, which bears date September 26, 1913. The second order or purchase contract was, together with the notes and mortgages involved herein, signed by the plaintiff at Thief River Ralls, Minnesota, where he resides. He took all the papers to his home and read them over, before he signed them.
On May 15, 1915, plaintiff instituted this action for the purpose of rescinding the contract of purchase, and to cancel the notes and mortgages, on the sole ground that the machinery failed to fulfil certain alleged express warranties, and that for that reason the consideration for said notes and mortgages had failed. In his complaint plaintiff specifically refers to the contract dated September 15, 1913, and pleads at length certain warranties, terms, and stipulations which it is averred are contained in such contract. On May 24, 1915, defendant’s attorneys wrote plaintiff’s attorney as follows:
Mr. O. A. M. Spencer, May 24th, 1915.
Attorney at law,
Williston, N. D.
Dear Sir:—
The summons and complaint in the suit of Rrancis J. McGinnity against the J. I. Oase T. M. Company has to-day been referred to us as its general counsel, and on reading the same we note that you set forth in paragraph 5 the form of conditional warranty that was contained in the form of order formerly used by the company in North Dakota, but which was not in use at the time Mr. R. J. McGinnity gave his order, and which form of warranty is not contained in his order; on the other hand, his order contains this stipulation:
“It is expressly agreed that the property herein ordered is not warranted, either expressly or by implication, except that the company warrants ownership thereof at the time and place of delivery.”
Under date of March 11th, the company received a request from Mr. George H. Molering, as attorney for Mr. McGinnity, for a copy *306of the order, which request was referred to the company’s general collector, F. C. Upton, of Minot, for attention, and we are apprehensive that through some oversight he got hold of and sent Mr. Molering the old form of order, which presumably has found its way into your hands, and has possibly misled you in the drafting of the complaint.
We have no desire that you be misled or put at any disadvantage through any error on the part of the company if such is the case, and so take the liberty of writing you. If you desire further assurance of the correctness of our statement, we would be pleased to forward the original order bearing Mr. McGinnity’s signature to your bank for your inspection, with the understanding that the bank return it to us. It would serve no useful purpose for either side to litigate this case under a misapprehension of the contract between the parties; and if our surmise is correct we desire to put you right.
Tours very truly,
Upham, Black, Russell, & Richardson.
Per Black.
Thereafter, in response to a request of the plaintiff’s attorney, the attorneys for the defendant forwarded the original order or purchase contract to the Williston State Bank, in order that plaintiff and his attorney might call there and examine it. After plaintiff’s attorney had made such examination, he elected to stand on the contract as pleaded in the complaint. Defendant thereon interposed an answer which was served on plaintiff’s attorney on June 12, 1915, wherein it specifically denied that it entered into the contract pleaded in the complaint, and alleged affirmatively that the contract under which the machinery was sold contained no warranty whatever, but specifically provided that the property was not warranted, either expressly or by implication, except as to ownership; and a copy of the contract dated September 26, 1915, was attached to and specifically made a part of the answer. Plaintiff’s counsel thereupon interposed a reply denying the affirmative allegations of the answer. The case came on for trial on February 23, 1916, and resulted in findings in favor of the defendant. Upon the trial plaintiff was represented by Mr. Spencer, the attorney who prepared the summons and complaint and who had been in charge of the cause from its beginning.
*307Plaintiff’s theory upon the trial and his positive testimony was to the effect that the contract pleaded in the answer was a forgery. The issue of forgery was in reality the only one presented to the trial court for determination. The trial court held that the contract was not a forgery. This finding was unquestionably correct. In fact its correctness is virtually conceded on this appeal.
Subsequent to the trial plaintiff engaged new counsel, who moved for a new trial on the ground of accident or surprise, which ordinary prudence could not have guarded against. The theory on the motion for a new trial was that plaintiff was in error when he testified that the contract set forth in the answer was a forgery, and that the trial court’s findings that he actually did execute the contract were correct. The new theory is apparently that plaintiff was induced to sign the contract by deception.
The motion for a new trial was based upon the affidavit of one Van Wagen, an attorney, who was not engaged in practice when the action was commenced and who took no part in the trial thereof, but first became actively connected with the case subsequent to the trial. No affidavit was made by the plaintiff to the effect that he was mistaken in his testimony as given, or surprised upon the trial, nor was any affidavit to this or any other effect made by his brother L. A. McGinnity or by attorney Spencer, or by anyone else. The only affidavit submitted in support of the motion was the affidavit of Van Wagen.
It appears, both from the. evidence and from the affidavit, that L. A. McGinnity was in charge of the farm, and that practically all of the negotiations between the parties were had by said L. A. McGinnity acting for the plaintiff. In fact the entire correspondence contained in the record was had between L. A. McGinnity and the defendant. Not only is that so, but the claim of surprise contained in the affidavit filed in support of the motion for a new trial is to the effect “that said L. A'. McGinnity, agent, was taken by surprise at the same, and, if any order was signed or substituted, said L. A. McGinnity or plaintiff did not know of its existence, and, being so taken by surprise, was unable to present such matter under proper pleadings to the court.” There is no other averment in the affidavit- claiming any surprise on the part of the plaintiff personally. The affidavit also stated that L. A. McGinnity employed Mr. Spencer to bring the action, and it clearly appears that *308he (L. A. McGinnity) was the moving spirit in the entire transaction. According to his testimony the engine failed to give satisfaction, and certain correspondence was had between him and the defendant with respect thereto. During these negotiations a letter dated August 11, 1914, was written by the defendant to and received by L. A. Mc-Ginnity, which was in part as follows:
“When our expert Holder was with you on July 13th, if you had allowed him to explain to you how to take care of this tractor, treated him with courtesy, as we surely expect our customers to do, you would have been benefited by it. You will please note the clause in the order which your brother gave us, which reads plainly as follows:
“ 'It is expressly agreed that the property herein ordered is not warranted, either expressly or by implication, except that the company warrants ownership thereof at the time and place of delivery.’
“This, however, does not mean that we are not ready to give our customers assistance, as we have also shown you in the part of giving-you help whenever you called for it, but owing to the discourtesy you have shown our Mr. Holder, we certainly will not furnish any more experts under these conditions.
“We have forwarded copy of this letter to your brother at Thief Diver Falls, Minn., so he will understand the situation.”
L. A. McGinnity further stated in his testimony that on August 26, 1914, a representative of the defendant, in a conversation, also stated to him that the order or contract of purchase last signed contained no warranty whatever. And, as already stated, the answer of the defendant not only denied the existence of the first contract, but specifically referred to and attached a copy of the second contract.
In Van Wagen’s affidavit it is asserted that at the time of the trial plaintiff’s attorney Spencer was “quitting” the practice of law and removing from his associates, “covering a period of some, forty years, and going to a new and strange part of the country, which caused him anxiety and serious thought, and he could not concentrate his mind on matters he had in charge; and therefore, to affiant’s best knowledge and belief, coupled with the fact of surprise, as hereinbefore stated, was legally excused and exonerated from presenting and asking amendments to plaintiff’s plea to cover the matter on legal questions arising *309on the trial of above cause.” Spencer was formerly attorney general of this state; he prepared the summons and complaint and reply in the action; he also examined the second contract. This took place some twenty months before, the trial of the action. Even though the approaching departure for California might have caused Spencer “anxiety and serious thought” at the time of the trial, I don’t assume that this mental condition existed some twenty months prior thereto, when he examined the contract. The record of the trial bears no evidence of any incapacity or inability on the part of plaintiff’s attorney. The cause was well tried on the theory outlined by the pleadings and the testimony given by the plaintiff.
In view of plaintiff’s testimony there was no occasion for plaintiff’s counsel to ask for an amendment. The very form of the now proposed amendment would have constituted an admission that plaintiff’s testimony then given was untrue. As already stated plaintiff has in no manner indicated that he was mistaken in his former testimony, or that the actual facts are as outlined in Van Wagen’s affidavit.
It is a cardinal principle that a party must submit to the court, the best evidence in his power. Manifestly, plaintiff and his brother L. A. McGinnity knew best whether their testimony given upon the former trial was erroneous, or whether they were surprised by the evidence offered by the defendant. Yet there is complete silence on their part, and a party who was a complete stranger to the proceedings had at the trial makes an affidavit with respect to the alleged accident or surprise.
It should be borne in mind that the trial judge who saw and heard the parties and their counsel, and was familiar with every incident of the trial, refused to grant a new trial. It is elementary that a motion for a new trial on the ground of surprise or accident is addressed to the discretion of the trial court, and that its ruling will not be disturbed on appeal, unless a plain abuse of such discretion appears. Hayne, New Tr. & App. § 86. The statute says that a new trial may be granted for “accident or surprise, which ordinary prudence could not have guarded against.” How can it be said that the plaintiff or his agent, L. A. McGinnity, was surprised by the introduction of the second contract, or that ordinary prudence on their part could not have guarded *310against such surprise? The undisputed facts are that both the plaintiff and his brother L. A. McGinnity had actual knowledge of the fact that the plaintiff had executed two different orders or purchase contracts, with the understanding that the latter superseded the first. In his complaint plaintiff asked for a rescission of the.order or purchase contract dated September 15, 1913, yet at the time he commenced the action he had in his possession the letter from his brother L. A. MeGinnity dated September 22, 1913 (set out in the opinion of Mr. Justice Grace), which plaintiff claims was delivered to him at the time he signed the second contract. Not only were they possessed of this knowledge, but on August 11, 1914, some nine months prior to the commencement of the action, they were both specifically notified by letter to the effect that the second contract contained no warranties. After the commencement of the action, plaintiff’s counsel was specifically notified by defendant’s attorneys that the contract or order on which the goods were sold contained no warranties, and the original contract was submitted to plaintiff’s attorney for examination, and a copy thereof attached to and made a part of defendant’s answer.
“Accident and surprise, in order to furnish a basis for new trial,” says Spelling (Spelling, New Tr. & App. Pr. § 189), “must be such in legal sense. Mere neglect to prepare for what may be reasonably anticipated, and consequent surprise, do not present the condition contemplated by statutes giving the remedy only where ordinary prudence could not have guarded against it.
Where the pleadings indicate with reasonable certainty the line of proof which may be expected to be pursued by either party, the other and losing party cannot predicate surprise solely upon the introduction by his opponent of evidence different from what he expected would be offered. Where a plaintiff has simply proved the allegations of his pleadings, the defendant cannot complain of surprise.”
In discussing the same subject Hayne (Hayne, New Tr. & App. § 79) says: “The general rule is that each party must understand his case, and come prepared to meet the case made by his adversary. Therefore a party cannot be surprised that his adversary introduces testimony in support of the issues made by the pleadings, even though such testimony be false; nor can he be. surprised at the introduction of a document mentioned in the pleadings.” See also Ernster v. Christianson, 24 *311S. D. 103, 123 N. W. 711; Crowell v. Harvey, 30 Neb. 570, 46 N. W. 709; Matoushek v. Dutcher, 67 Neb. 627, 93 N. W. 1049.
In my opinion tbe order denying a new trial should be affirmed.
Bruce, Cb. J. I concur in tbe dissenting opinion of Mr. Justice Christianson.