Cone Export & Commission Co. v. McCalla

1. Under the Civil Code, § 5662, a second affidavit of illegality is not maintainable if based upon “ causes which existed and were known, or in the exercise of reasonable diligence might have been known at the time of filing the first.”

2. It necessarily follows that when, upon the trial of the issue formed by the filing of a second affidavit of illegality, the affiant testified : “All the grounds in this second affidavit were really known to me at the filing of my first affidavit, but I did not know that they ought to be put in,” a verdict could not lawfully be rendered in his favor.

3. The…