Opinion
05-27-1893
BURROWS v. WENE.
Jos. B. Alward and R. V. Undabury, for complainant. Martin Wyckoff, for defendant.
Bill by Waters Burrows against John P. Wene to set aside a purchase of mining property. Decree for complainant.
The other facts fully appear in the following statement by GREEN, V. O.:
On the 4th day of April, 1891, Waters Burrows, the complainant, and John P. Wene, the defendant, entered in to an agreement whereby the said Wene was to convey to the said Burrows half of lot, tract, or parcel of lands and premises situate in the township of Bethlehem, county of Hunterdon, and state of New Jersey. Said Wene to retain one-half of a certain mining interest therein. Burrows was to pay for his one-half interest the sum of $609 in three months, $618 in six months, and $762 in nine months, upon the payment of which sums a warranty deed was to be given for the land sold, and Wene was to accept a purchase-money bond and mortgage for $3,000. The complainant claimed he purchased the interest in the real estate for the sole purpose of obtaining sienna and umber from said land, which he was induced to believe by the statements of Wene existed thereon in large quantities; that he paid the first amount agreed upon, and gave notes for $618 and $792, respectively, and then found that the minerals he was after did not exist. He thereupon filed his bill of complaint, asking the court to decree the repayment of the $609, and return and surrender of the two promissory notes, to be canceled, with an injunction against the defendant negotiating the notes; and that the said agreement is fraudulent, and utterly void, and of none effect. The defendant denied making any misrepresentations, claiming that the complainant bought it at his own risk, and after he (Wene) had told him, "You know as well what is under ground as 1 do."
Jos. B. Alward and R. V. Undabury, for complainant.
Martin Wyckoff, for defendant.
GREEN, V. C. (after stating the facts.) I have arrived at the following conclusions:
1. That complainant had no, and the defendant had considerable, practical knowledge of mining for sienna and umber.
2. That complainant desired to purchase mining property which would produce at least a certain specified amount of both paints, and that defendant knew that such was his only object in making a purchase.
3. That defendant made such representations to the complainant as to the paint-mining capacity of the land sold as to in duce him to believe that it was equal to his requirements, and that he made the purchase relying on the statements of the defendant with reference thereto, and on defendant's experience and personal knowledge of the property.
4. That defendant, from his personal experience on the property, should have known whether his representations were true; and that complainant could not, from the casual examination he was able at the time to make, have ascertained whether they were correct or not.
5. That the property, as developed by mining, was entirely inadequate to produce the amount of paints represented or required by the complainant; that the mine opened at the time of sale was practically worked out; and that experimental openings did not yield promised results. In short, that the representations as to capacity were not true.
6. That complainant is entitled to a decree.
On Petition and Affidavits.
This is an application by the defendant for a rehearing, and for permission to produce further proofs. He states in his petition that he was surprised at the evidence given by Frederick A. Canfield, a mining engineer, to the effect that, on a thorough personal examination of the mine in question, he did not find sienna in quantities or position to be mined; and defendant now desires an opportunity to produce evidence that there was sienna in the mine in large quantities, and accessible. The question of fact in dispute in the case was whether there was a deposit of sienna and umber of sufficient quantity to sustain the contract between the parties. The evidence on the point was in direct conflict, and extremely unsatisfactory, not only in substance, but from the manner of several of the witnesses. At one stage of the trial, on May 20th, after the defendant had been sworn, but before his examination had been proceeded with, counsel for the complainant said: "On account of the conflicting testimony as to the condition of that mine, I propose now to counsel for the defendant that an expert be nominated by the court, and that he be sent to examine this mine before the next day of meeting, to report to the court at that time as to its true condition. What do you say, Mr. Wyckoff?" To which counsel for defendant replied: "I have nothing to say at all. I make no reply; but I do not consent to it, and no sane man would consent to anything of the kind." Defendant's examination was not concluded that day, and the further trial was adjourned until June 3d, when defendant's examination was resumed; and in the afternoon Mr. Canfield was sworn by the complainant as a mining expert, who had, during the adjournment, made a personal inspection of the mine. Defendant made no application for an adjournment to give him an opportunity to answer the testimony of Mr. Canfield, and the case was set down for argument 10 days thereafter, when it was summed up by counsel without any suggestion that defendant wanted to put inevidence to contradict the testimony of Mr. Canfield. Subsequently briefs were submitted, and, after a careful-examination and consideration of the testimony, I furnished counsel with my conclusions that complainant was entitled to a decree; and it was not until the parties appeared before me to settle the decree that any move to controvert that testimony was made.
Under the present practice of this court regulating the trial of causes orally before a vice chancellor, this is amotion for a new trial, and is governed by the same rules that the law courts apply to applications for new trials. Warner v. Warner, 81 N. J. Eq. 549. It is presented practically as a motion for new trial after verdict at law. In such case the party must offer promptly evidence not only new in the sense that it is not simply cumulative, but it must also be newly discovered, and such as he could not have known of and produced on the trial by the exercise of diligence. What Vice Chancellor Van Fleet says in Traphagen v. Voorhees, 45 N. J. Eq. 41, at page 46, with reference to an application to file a bill of review on the ground of newly-discovered evidence, applies with equal force here: "Another indispensable requisite is that the evidence on which the application is grounded must not only be new of material, but the applicant is bound to show that the nature, condition, or situation of the new evidence was such that he could not, by the use of reasonable diligence, have discovered it in time to have made use of it in final hearing." The suggestion of surprise as to the testimony of Mr. Canfield is entirely disposed of by the fact that no timely attempt was made to answer it. If defendant had, at any time before the cause was argued, applied for leave to put in demonstrative proof that Mr. Canfield's examination of the mine and testimony was faulty, I should have had no hesitation in grunting him the opportunity, and, on the ground of surprise, of giving him time for making practical tests to obtain such proofs. There is no serious objection to such a course in trials in this court, by oral testimony before a vice chancellor, as there might be in the trial of a cause before a jury. Not having done so, but having waited until he ascertained how the case was to be decided on the testimony already in, he cannot claim surprise. Strictly speaking, the evidence now proposed could not have been produced on the trial before proofs were closed, for it mostly relates to operations in the mine after the cause had been submitted for decision. But there is no reason, so far as appears, why such practical test could not have been made before or immediately after Mr. Canfield was examined. No physical difficulties are presented why such course could not have been pursued. An application like the present will not be granted if the evidence to be offered is merely cumulative. McDowell v. Perrine, 36 N. J. Eq. 632; Main v. Main, (N. J. Ch.) 25 Atl. Rep. 372. It is claimed that this is not cumulative, because it is another kind of evidence, viz. that of actual operations in the mine, characterized as demonstrative of the presence of paint in the mine. But the other evidence had also been of the same character. The actual product of the mine after complainant's purchase had been very unsatisfactory, notwithstanding the fact that operations had been carried on under the eye of the defendant. He contends—and possibly correctly— that he was under no obligation to carry on the mining, but his letters show that he was giving his attention to it. His witnesses on the point, as well as himself, spoke of their personal investigation and working in the mine. Their testimony was as to what had been taken out and what apparently remained. That was the end and aim of the defendant's evidence on that, branch of the case. The newly-ofered evidence is only in verification of the former; possibly stronger, but still all to the same effect. Defendant rested his ease on his judgment that the evidence he had produced was of sufficient probative force to overcome the testimony offered by the complainant. Not using the term in an offensive sense, he speculated on the decision of the court, and, having lost, he now desires to correct his error of judgment. To permit him to do so would, I think, be contrary to established practice. It is of the highest importance that there should be some certain end of litigation. The rules of practice are made to accomplish that purpose. If parties are permitted to experiment with the court, with the expectation, if they are not successful, that they can have another opportunity,—a privilege which must be granted to both if granted at all,—a trial may be protracted indefinitely. I am of opinion the petition must be denied.