I. It is insisted that upon the first trial the court erred in its construction of the written contract between the parties. If so, plaintiff’s remedy was by appeal, and not a petition for a new trial, filed several months after the term at which the cause was tried.

*695II. In our opinion the court below correctly held that plaintiff was not entitled to a new trial because of newly discovered evidence. Conceding that the alleged evidence was not cumulative, about which there is much doubt, a careful examination of the record has satisfied us that no proper diligence was shown to discover the evidence at the first trial. Some of the facts which are relied upon were directly in the line of plaintiff’s inquiry. Indeed, all the alleged new facts that seem to us to be material were testified to by witnesses who were examined on the first trial.

We need not set out or discuss the evidence at length. It would serve no useful purpose.

Affirmed.