Concurring as I do, with the result announced by Judge SIMONS, and with all his views as expressed in the opinion, except as therein noted, it appears proper to examine the claimed error of the court in refusing to grant a retrial on the ground of newly discovered evidence.
When the motion for new trial was filed, it was based upon the ground that newly discovered evidence revealed that Tway had purchased the Banco stock for his undisclosed principal, a corporation in which he was the principal stockholder; whereas, the defense on the trial had been predicated on the proposition that Tway was, individually, the owner of the stock; and certain of his testimony was quoted in an affidavit supporting the motion in which, in answer to an interrogation, he had stated that there was no doubt in his *104mind that he owned the stock at the time of purchase. Moreover, in the brief filed by counsel for receiver, it was emphasized that the newly discovered evidence showed that the stock was purchased by Tway for his undisclosed principal. Counsel for Tway met this issue squarely and, before hearing of the motion, filed a brief to sustain the proposition that it would make no difference in the disposition of the case, whether Tway had purchased for himself or on behalf of his undisclosed principal, for the reason that an agent of an undisclosed principal was entitled to assert all defenses that his principal might assert.
This proposition appears to be unquestioned by appellant; but, on receiving appellee’s brief on the motion, appellant immediately changed his theory and claimed that the newly discovered evidence showed that Tway had purchased the stock individually and had, thereafter, transferred it to the corporation in question. If this had been the fact, Tway would be without defense to the suit. The trial court held that, if it considered.the facts relied upon by the receiver, sufficient to warrant submission of the question to a jury, with reason to believe that honest minds might differ on the matter, it would feel obliged to grant a new trial; but that, in its opinion, it was not' reasonable to believe that the jury that tried the case, or that another jury, would find that the appellee had at any time purchased the stock, individually; and that all the circumstances negatived such a contention. In the trial court’s opinion, it was stated that there was so little to support the receiver’s contention and so much to support appellee’s contention, that the court concluded it would be futile to retry the entire case merely to submit this fact question. Such a view seems reasonable.
Appellant now claims that, in view of the newly discovered evidence, he has the right to show that Tway referred to the stock as his stock and claimed it as his own, on the trial, contrary to his present assertion that he purchased for his undisclosed principal. Appellant, therefore, contends that he is entitled to a new trial on the ground of newly discovered evidence, which affects Tway’s credibility as a witness. Tway’s answer to the motion for new trial, included his affidavit in which he showed that he and his wife were the owners of the corporation in question, with the exception of certain shares of stock in the names of employees, and that he so completely managed the company that he customarily and ordinarily referred to its transactions as his own, and to the stock in question, as his stock, or as having been bought by him; and, because the corporation was controlled and substantially owned by him, he had not considered that there was any difference between the actual fact and his testimony as given. It appears that he was the substantial owner of the company, and the evidence strongly tends to show he purchased the stock as agent for the corporation. It is true that when the bank closed and there was a balance of $80.82 in his account, which he desired to set off against the note given for the stock, he filed a sworn proof of claim, stating that the fund was his personal property and that no other person or corporation had any interest therein. The fact is that, although it stood in his name, it belonged to his undisclosed principal. This, however, would have made no difference with regard to the allowance of the claim, and if his statement were not made for his own profit or personal benefit, or with the object or effect of deceiving or prejudicing the receiver, it is difficult to see how it would be fraudulent. The claim would have been established whether Tway asserted it, individually, or as agent for his undisclosed principal. Appellant, in the proceedings for new trial, asked to take testimony in support of the motion, and, by affidavit of counsel, set forth that the facts in issue could not be determined without an examination of Tway and Clark, an officer of Tway’s company. Thereupon, counsel for Tway consented to the taking of the deposition of these witnesses on two different occasions. Appellant’s counsel then declined that which they had theretofore insisted upon, saying that they chose not to rely on such witnesses’ self-serving statements, and, after demanding the right to cross-examine Tway, they refused the opportunity offered them. Such refusal to take advantage of the proffered cross-examination, could well convince the trial court that there was no merit in the contention of counsel for receiver. The most that could be said for the receiver’s present contention is that the new evidence would affect Tway’s credibility in a matter that, to me, seems incidental.
Where newly discovered evidence contradicts a principal witness on important points, and attacks his credibility as a witness, the granting of a retrial upon newly discovered evidence of a contradictory and impeaching character, is a matter that rests in the sound discretion of the *105court, and its determination will not be reversed without abuse of that discretion. Chambers v. Anderson, 6 Cir., 58 F.2d 151. Newly discovered evidence which tends merely to affect the weight and credibility of evidence does not constitute proper basis for a new trial. Morton Butler Timber Co. v. United States, 6 Cir., 91 F.2d 884. Under the circumstances of this case, it does not appear to me that denial of the motion for new trial on the ground of newly discovered evidence, that would only affect the credibility of T way, was an abuse of discretion on the part of the district court.
Judge HICKS joins in this opinion.