Docket No. 959
Decided: Tuesday, January 9th, 1894
Opinion: 8 Wash. 26 (1894)
Court: Dunbar1 Court (1893-1894)
Dunbar
Anders
Hoyt
Scott
Stiles
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LAFOND v. SMITH, 8 Wash. 26; 35 P. 404 (1894).
No. 959.
SUPREME COURT OF WASHINGTON January 9, 1894, Decided Appeal from Superior Court, Skagit County.
Court: Judgment reversed and cause remanded with instructions.
Counsel: Sinclair & Smith, for appellant. J. C. Waugh, for respondent.
Judge(s) DUNBAR, C. J. STILES, SCOTT, ANDERS and HOYT, JJ., concur.
Opinion By: DUNBAR The opinion of the court was delivered by DUNBAR, C. J.--The record in this case is exceedingly meager, and the special findings of fact by the jury are somewhat conflicting. So far as we are able to ascertain from the record, there is no merit in any of the allegations of error assigned by the appellant, except the error of the court in not granting a new trial on the ground of newly discovered evidence.
It seems to us that the letter, upon which the application for a new trial was made, shows pretty conclusively that the plaintiff had elected to seek his remedy against the horses, and that the appellant, after receiving the letter, had a right to presume that the respondent would take such action as he informed him in the letter that he would. He would not, therefore, be bound for any personal judgment. Instead of pursuing that remedy, however, respondent waited until the bill against the horses had become somewhat enormous and then sought to hold the appellant for its payment personally, after having notified him that he would resort to his lien upon the horses. We think if this letter had been introduced in testimony the probabilities are that the verdict would have been different; and as the affidavit of appellant seems to us to fully explain its absence at the trial, we think the court erred in not granting the motion for a new trial on this ground.
The judgment will, therefore, be reversed and the cause remanded with instructions to grant a new trial.
STILES, SCOTT, ANDERS and HOYT, JJ., concur.