Page:Federal Reporter, 1st Series, Volume 6.djvu/597

 MANSFIBLD ». DUDGBON. 585 �appearance in the case; and, finally, that Mansfield died not long after his bankruptcy. There bas been no attempt to move in the case by either party until proceedings were taken a short time since in behalf of surviving plaintififs to enter judgment on the verdict, which was 'met by this old motion for a new trial. �The grounds of surprise and newly-discovered evidence are the principal and only ones I shall consider, and I am of opinion, under the circumstances, that the question whether these grounds are sufficient should be regarded as if the motion had been heard within a month aftef it was entered. The question tums upon whether the newly-discovered evi- dence ought, by diligence, to have have been discovered before the trial, and whether it is of sufficient importance to prob- ably change the resuit upon another trial. The corn which is the subject of the suit, and which plaintiffs sold and deliv- ered to defendants under a contract, had most of it arrived at Cairo, Illinois, on the eighteenth of April, 1865, and was intended to be sold at that place by defendants to the general government, and be inspected by govemment inspectors. Defendants did not pay in full for the corn, as agreed ; they claimed part of it was not Sound and merchantable, and this suit was for the price of the unpaid portion, or that which they alleged to be unsound corn. Defendants relied upon showing as a defence that they and plaintiffs, at St. Louis, on the eighteenth of April, 1865, came to an understanding and agreement that defendants were to pay for the sound, but not for the unsound, corn ; and that what was unsound was to be determined by what was rejected by the government inspector at Cairo. They testified on the trial that such was the fact, and that an order was given by them to plaintiff Mansfield, on the freight agent of the Illinois Central Eailroad at Cairo, to deliver the rejected corn to warehousemen, for plaintiffs' disposition. Mansfield, on the trial,' denied any such agreement, or any such order had been given. The pre- ponderance of evidence was on the side of plaintiffs, in the opinion of the the jury, and the verdict was for them. �After the trial defendants discovered that plaintiffs and a ��� �