Opinion
No. 31993.
February 3, 1936.
1. LANDLORD AND TENANT.
Evidence sustained finding that new oral contract under which tenant was to pay what he could as reasonable rent for possession of land had replaced written contract, and verdict that landlord's attachment for rent was wrongfully sued out (Code 1930, sections 2192, 2205, 2209, 2211).
2. APPEAL AND ERROR.
Reviewing court would not consider alleged error in oral charge, given without objection or request for change, which was not mentioned in motion for new trial.
3. NEW TRIAL.
Trial court properly overruled motion for new trial on ground of newly discovered evidence, where counsel for party making motion had neither sworn to such motion nor been examined orally with reference thereto.
APPEAL from the circuit court of Monroe county; HON. THOS. H. JOHNSTON, Judge.
M.C. Young, of Aberdeen, for appellant.
There is no dispute practically that the tenant held over for about three months and according to his own testimony he was a tenant of the place for the year 1930, and under the law it seems practically undisputed that he would be required to pay double rent or some reasonable double rent for the hold-over period having had written notice of the termination of his contract and the termination of his tenancy.
Sections 2224 and 2225, Code of 1930; Weatherall v. Brown, 113 Miss. 887, 74 So. 765; Penix v. Jones, 127 Miss. 764, 90 So. 486.
The verdict of the jury should have been set aside and a new trial granted because it was decided against the great weight of the testimony and the law governing the case.
Garland v. Stewart, 31 Miss. 314; Gay v. Lemle, 32 Miss. 309; Barnett v. Jayne, 1 Miss. Dec. 126; M. O.R.R. v. Bennett, 127 Miss. 413, 90 So. 113; Columbus Greenville R.R. v. Buford, 116 So. 817; Fore v. Railway, 87 Miss. 211, 218, 39 So. 493; Fore v. I.C.R.R., 172 Miss. 451, 159 So. 557, 160 So. 903; Justice v. State, 170 Miss. 96, 154 So. 265; 46 C.J., pages 243 to 345.
The testimony on the motion for the new trial shows clearly and plainly that T.W. Graham and his attorney were diligent and did all that was reasonably possible to get ready for the trial, and that during the trial a letter was produced by the tenant written to him by Mr. Graham in the fall of 1929, undertaking to cancel the sale contract, that Mr. Graham remembered having written the letter, did not anticipate or expect that the letter might be changed in a material part, and that he did not detect during the trial that there were material changes in said letter as to the dates and other points which he did not write or put on, and in, the said letter.
46 C.J. 243-345; Rulon v. Hintol, 2 How. 891; Vardeman v. Byran, 8 Miss. 365; Kane v. Burrue, 10 Miss. 313; Thompson v. Williams, 15 Miss. 278; Haber v. Lane, 45 Miss. 208; Vandenburg v. Campbell, 64 Miss. 89, 8 So. 206; Shank v. Geiger, 132 Miss. 320, 96 So. 515.
While the appellant did not claim surprise during the trial because he did not know and could not discover, and detect, where the trouble was, yet the early cases on surprise, accident and mistakes clearly set out the law as in Dorr v. Watson, 28 Miss. 283, where the court said "the rule is well settled that where a party or his counsel is taken by surprise on a material point or circumstance which could not reasonably have been anticipated, and want of skill, care or attention, cannot be justly imputed, and injustice has been done, a new trial should be granted."
The proof as to the date line of the letter not being the writing of Mr. Graham, seems to be clear and convincing.
Wigmore on Evidence (2 Ed.), sections 1991-2027.
Paine Paine, of Aberdeen, for appellee.
Under section 2213, Code of 1930, the burden of proof was on appellant.
The finding of facts by a jury upon conflicting testimony will not be reversed by Supreme Court.
Stevenson v. Swilley, 156 Miss. 552; Public Service Corp. v. Watts, 150 So. 192; N.O. N.E.R.R. Co. v. Holsomback, 151 So. 720; Williams Yellow Pine Co. v. Henley, 125 So. 552.
As to the second cause assigned by appellant for reversal, we submit that there is no virtue in this assignment because motion for a new trial asked for newly discovered evidence of facts must be supported by affidavit both by appellant and his attorneys and a failure by the appellant and his attorneys to make the required affidavits is fatal to the right to have the case reversed on appeal.
Hilbun v. State, 167 Miss. 725; Beard v. Turritin, 161 So. 688.
We respectfully submit that the attorney did neither testify nor make affidavit of the required facts and hence the court committed no error in refusing to grant a new trial on the question of newly discovered testimony.
Argued orally by M.C. Young, for appellant.
The appellant, T.W. Graham, as landlord, by affidavit in compliance with section 2192, Code 1930, obtained a writ in attachment for rent against the agricultural products of J.A. Swinney, appellee, tenant, which was duly served by the sheriff of Monroe county on corn and hay. The tenant, Swinney, executed bond under section 2205 and the personal property was released to him. He also filed his declaration, section 2209, to which the landlord filed his avowry, section 2211, and Swinney, the tenant, filed his replication. Evidence was heard and the judge charged the jury orally, by agreement of the parties, and a verdict was rendered in favor of Swinney that he retain the property, that the attachment was wrongfully sued out, and for fifty dollars attorney's fees. Judgment was entered accordingly, from which Graham here appeals.
In March, 1927, Graham, the owner, and Swinney, as purchaser, entered into an agreement by contract that Graham would sell to Swinney his farm in Monroe county for seven thousand five hundred dollars, for which Swinney would pay Graham one-third of the market sale price of all the crops raised on the land, and that no payment was to be less than four hundred fifty dollars per annum, and that such payment of four hundred fifty dollars was to be retained as "interest or rent" on the principal sum. A landlord's lien for rent was retained on all agricultural products grown on the land, and it was stipulated that, in event Swinney did not comply with the terms of the contract, Graham had the right, automatically, to cancel same and was entitled to possession of the land. In addition to the amount due Graham on this contract of sale for the land, Swinney owed Graham a considerable sum evidenced by promissory notes.
Graham testified that in the fall of 1929, he prepared a written notice to Swinney stating that, because of his failure to comply with the agreement by making payments on the land, the contract was terminated; that he saw Swinney and read the notice to him, but that on Swinney's agreement to make some payments he (Graham) consented that the contract of sale of the land might be continued in force; and that in pursuance of this oral agreement about one thousand dollars was thereafter paid to him. The letter or notice to the above effect was addressed to Swinney and signed by Graham, and was dated "11/16/29." It was exhibited to Graham on cross-examination, and he said, in effect, that it was the letter, but that he was sure it was written before the payments were made at different times to him, and that there was something wrong about the date. The fact that payments had been made prior to November 16, 1929, is not disputed. Graham denied that the contract had been made at the time he testified he delivered the written notice to Swinney whereby the terms of the sales contract were changed, and stated that only ninety-one dollars of the rent for the year 1930 had been paid to him; that the tenant had notice to vacate served in the fall of 1930, but had held over until March, 1931. Graham swore to the correctness of an account for rent due far in excess of the agricultural products seized.
Swinney, the tenant, had a different version of the facts, and said that the written notice dated "11/16/29" was read to him by Graham while seated in his car; that he took the written notice from the hands of Graham and did not move; and that subsequent to this time Graham came to the place and told him (Swinney) he could stay on and pay whatever he could as reasonable rent for the land and to go ahead and cultivate it, and that at the time of the service of the notice he had already made payments to Graham for about one thousand dollars. These payments would not have equaled the amount of Swinney's indebtedness to Graham independent of the rent contract.
On this issue of whether the written contract was in force, or whether there was a new contract by which Swinney was to remain in possession of, and cultivate the land, the case was submitted to the jury, and the jury, as stated, found against the landlord's contention.
There was filed a motion for a new trial which was sworn to by T.W. Graham, but not by his attorney, on the ground that he had discovered new evidence to the effect that the date "11/16/29" was not in the same handwriting as that on genuine checks signed by Graham.
The court heard evidence on the motion for a new trial, and an expert testified that the date "11/16/29" was not in the handwriting of Graham.
The court overruled the motion for a new trial.
1. On a careful examination of the evidence, we cannot set aside the verdict of the jury on the ground that it was contrary to the overwhelming weight of the evidence. There was sharp conflict between the two principal parties as to whether Swinney remained in possession of the land under the written contract, or under the new oral contract made subsequent to the cancellation of the written one.
2. It is contended that the court erred in directing the jury in event they found for the tenant to assess damages and fifty dollars attorney's fees for the wrongful suing out of the writ of attachment. It was agreed by counsel that fifty dollars was a reasonable attorney's fee, and also by agreement the charge of the judge was given orally to the jury, without any kind of exception or objection thereto being made, nor was there any request made of the court for any change whatever in the oral charge. Therefore, there is no error properly assigned here. Indeed, this point was not made in the motion for a new trial. 3 C.J. 843, section 751, and page 850, section 756.
3. For the same reason the objection that the court erred in not permitting a recovery against the tenant for holding over until March, 1931, cannot here be assigned as error.
On the alleged newly discovered evidence, we are under the necessity of holding that not only must due diligence be shown by the party seeking a new trial, but there must be due diligence also on the part of his counsel. The motion for the new trial was not sworn to by counsel for the appellant, nor was he examined orally with reference thereto, and the court did not err in overruling the motion for a new trial, since the affidavit of the attorney was essential. Beard v. Turritin (Miss.), 161 So. 688.
We find no reversible error in the record, and the case will be affirmed.
Affirmed.