#### C. H. SCALES v. R. E. WALL.

(Filed 9 November, 1927.)

Appeal by defendant from Harding, J., at June Term, 1921, of RockiNgham.

No error.

Action to recover upon accounts for supplies sold and delivered by plaintiff, a merchant, to tenants of defendant, a landlord. Plaintiff alleged that prior to the sale and delivery of said supplies defendant agreed to pay for same; this allegation was denied by defendant. The issue was answered by the jury in accordance with the contention of plaintiff.

From judgment upon the verdict defendant appealed to the Supreme Court.

Bwinlc, Clement & Hutchins for plaintiff.

McMichael & McMichael and Manly, Hendren & Womble for defendant.

Pee Cueiam.

The only matter involved in the controversy which is the subject of this action is whether or not defendant agreed, prior to *805tbe sale and delivery of supplies to bis tenants, to pay plaintiff for same. There was evidence tending to support tbe contention of eacb of tbe parties witb respect to tbis matter. Tbis evidence was submitted to tbe jury, wbo returned a verdict for tbe plaintiff. We find no error, and tbe judgment is affirmed.

Defendant’s motion, made in tbis Court for a new trial, for newly discovered evidence is denied. It appears from tbe affidavits filed upon tbe bearing of tbis motion, tbat tbe evidence wbicb defendant alleges be has discovered since tbe trial, is merely cumulative. At best it tends only to contradict tbe plaintiff and to corroborate tbe defendant, botb of wbom testified at tbe trial. See Alexander v. Cedar Works, 177 N. C., 536. Tbe rule there stated is as follows: “Tbe Supreme Court will not order a new trial for newly discovered evidence tbat is merely' cumulative, or without probability tbat tbe result will thereby be changed.”

No error.