¶1The evidence of the plaintiff supported the allegations in his complaint, and although it is contradicted by a greater weight of testimony on the part of defendant, the preponderance is not so great as to call upon the court to set aside the verdict.
¶2The defendant fails to make a case for a new trial on the ground of newly discovered evidence. He shows no diligence whatever, and it does not appear but that by use of proper diligence he could have ascertained what Broughton would testify to in time for the trial.
¶3The contract sued on was that defendant would pay to C. H. McCormick & Bros, a note which they had against plaintiff, and which plaintiff alleges he was, by defendant’s default, compelled to pay to them. He testifies that he paid it to their agent, Broughton. It would have occurred to any one, claiming the facts to be as defendant claims them, to have made some effort to learn if Broughton knew anything, and if so, what, of the facts. This is especially so when there was a previous trial, some four months before that com*358plained of. Defendant made no such effort. The evidence of Johnson for defendant justified the charge of the court complained of.
¶4Judgment affirmed.