Goldstein v. Lowther
Goldstein v. Lowther
Opinion of the Court
We have examined this record and the points made upon it, and are not satisfied with the finding and judgment.
Appellant might well complain of surprise by the course pursued on the trial, by substituting a verbal contract for the written contract the parties had entered into, the defendant not being apprised, by any pleadings in the cause, that such would be the claim of the plaintiff to a recovery. The defendant did not enter upon the trial prepared to make any defense to such a claim. In truth, he was not then able to make any defense.
We are satisfied justice will be best subserved by submitting the cause to another jury, so that a full investigation may be had, and which it does not appear has been had.
The judgment will be reversed, and the cause remanded that a new trial may be had.
Judgment reversed.
Reference
- Full Case Name
- Julius Goldstein v. Granville Lowther
- Status
- Published
- Syllabus
- New trial—party taken by surprise entitled to. Where there are no written pleadings to apprise a defendant of an intention on the part of the plaintiff to rely upon a verbal contract alleged to have been substituted for a written contract acknowleged to have existed between the parties, the defendant may well complain of a surprise by such a course; and upon an affidavit to the effect that he was so surprised, and that no such verbal contract was ever made, that he was unable, by reason of such surprise, to produce witnesses to contradict the testimony of plaintiff’s witnesses, and that, upon another trial, he can produce such witnesses, a new trial ought to be granted.