Mackubin v. Clarkson

5 Minn. 247 | Minn. | 1861

By the Court

Atwatee, J.

The first error alleged on the part of the Appellant, is the refusal of the Court below to grant a continuance on the affidavit of the Defendant. The affidavit stated that he (Defendant) had stated the facts in this case to H. L. Moss, Esq., his attorney, and that he is advised by his said attorney that he cannot safely proceed to trial without the testimony of August Hageman, who is a material witness in this action. That said TIageman had resided in St. Paul during the past year, and that since the commencement of the Court he had informed the Defendant that he would be ready at any time to attend and be present at the trial of the cause. That on the evening of the 3d of October the Deponent had sent to the residence of Hageman to have him in attendance before the Court, and was informed that within the last ten days he had gone to Memphis, Tennessee, and would be absent three months. The affidavit further stated, that relying upon the promises of the witness he had not subpenaed him, had n.o knowledge of his intention to leave, and expected to be able to procure his testimony at the next term, &c.

The affidavit also stated that one Kittel was also a material witness for the Defendant. That he had been absent from the State since the cause was at issue; that he had been unable to ascertain bis residence or whereabouts, but tbat be was expected to return to tbe State, and tbat Deponent expected to be able to procure bis testimony at tbe next'term of tbe Court. Tbe affidavit did not state wbat was expected to be proved by either witness.

There was no error in tbe refusal to grant a continuance on this affidavit. There was no diligence whatever shown to procure tbe attendance of Hageman. If a party chooses to rely upon tbe promise of a witness to be in attendance, without snb0penaing him, be does so at bis own risk, and cannot, on tbat ground, claim a continuance if tbe witness does not keep bis agreement. (Beaulieu vs. Parsons, 2 Min. 37.) Tbe affidavit is also defective in not showing wherein tbe witnesses were material. Tbe facts which tbe party proposes and expects to prove by tbe witnesses should be set out in tbe affidavit, so tbat tbe Court may judge of tbe materiality of tbe witness. Tbe party himself is not to be the judge of tbe materiality of testimony. If this were so, there are probably few cases in which an adjournment would not be obtained, once at least, and perhaps many times. We are aware of no authorities which sustain a continuance on such an affidavit ^ and if there are any, they are entitled to little weight. Tbe least tbat can be required on this point is, tbat tbe party should state tbat be has stated tbe facts which be expects to prove by bis absent witnesses to bis counsel, and tbat be is advised by bis counsel tbat be cannot safely proceed to trial without tbe testimony of such witnesses. But tbe better and correct practice is as above stated, to set forth tbe facts in tbe affidavit, tbat tbe Court may be advised as to whether tbe testimony is necessary or otherwise.

Tbe Defendant at tbe trial of tbe cause moved for judgment in bis favor on the' pleadings, which motion was denied by the Court. This ruling is now assigned as one ground of error. Tbe action was brought to recover tbe sum of $253.80, due, as alleged in tbe complaint, for painting and painting materials. Tbe Defendant in his answer set up a special contract between himself and Plaintiff, in substance claiming tbat tbe Plaintiff agreed to work for tbe Defendant for tbe price of two dollars per day, and to receive payment therefor at tbe rate of one dollar per day in cash, and tbe balance of one dollar per day was to be applied towards tbe payment of a lot in St. Paul, wbicb tbe Plaintiff then agreed to purchase of Defendant, at tbe price of $350, and that tbe Defendant agreed to pay for tbe same by giving two promissory notes of $175 each, one of wbicb notes was to be paid by Plaintiff in labor at tbe rate of a dollar per day, and tbe other to be paid in five years. That tbe Plaintiff performed bis labor in pursuance of this agreement, and that tbe Defendant was, and had always been, ready to perform on bis part, &c. There were other allegations in tbe answer, wbicb it is unnecessary to state.

Tbe reply denied tbe special agreement set up in tbe answer, but admitted that there was originally a special agreement between himself and Defendant, whereby be agreed to work for tbe Defendant at tbe rate of two dollars per day, one half to be paid in cash and one half to be applied in payment of a lot wbicb tbe Defendant agreed to sell him for tbe sum of $350, and that tbe Defendant agreed to furnish him sufficient labor, on tbe terms above stated, to pay for tbe lot, and denied any agreement to give notes. Tbe Plaintiff alleges compliance with tbe agreement on bis part until tbe Defendant, without just cause, and without any default on tbe part of Plaintiff, discharged him from work, and that tbe Defendant refused to comply with tbe contract on bis part. These seem to be all tbe averments in tbe pleadings necessary to be noticed under tbe objections raised by tbe Appellant.

Tbe Appellant urges that tbe Plaintiff should have brought Ms action upon tbe said agreement to recover damages for an alleged breach, and that be cannot maintain bis action on tbe qucmf/wm meruit for work and labor, unless be shows that tbe agreement has been abandoned and tbe contract rescinded.

Where work is done under a special contract, wbicb has not been abandoned or rescinded by either party, but remains in full force, tbe action must be brought upon it, and tbe Plaintiff cannot recover upon the' common counts. This principle is too well settled to require argument or tbe citation'of authorities.

Tbe Plaintiff, in bis reply, admits that there was a special contract for the work, but alleges that the Defendant, without cause, discharged him from his employment. The Appellant claims that there should have been a demand alleged upon the Defendant to provide work, and a refusal by him to furnish it, and that a mere discharge does not amount to a default, as it might have been for a day or an hour. But we think the allegation sufficient to show a breach of contract on the part of Defendant, and that it throws upon him the burden of justifying it. The Plaintiff was at liberty to regard the contract as abandoned on the part of the Defendant by this act, and to proceed to recover the value of his labor as though no special contract had existed. It was not his duty after the discharge to go to the Defendant and demand work. If he could be required to make the demand once, he might, with the same reason, any number of times, and it would be difficult or impossible to define the limit of the Plaintiff’s duty in this respect. The Defendant was not entitled to judgment on the pleadings, and the Court properly denied the motion.

There is another objection to both the special contracts mentioned in the answer and reply. They were verbal contracts for the conveyance of land, and absolutely void by the statute of frauds. Neither party could take anything under them, and this objection could be raised by either, although the Plaintiff might have fully performed on his part. No demand, or tender of a deed by Plaintiff to Defendant for execution, would have made the Defendant any more liable, as there was not, nor could not be, any legal obligation on him to fulfill the contract. The contract was an entirety, and if void in part, was void in toto. The objection, therefore, that a demand for a deed of the lot by the Plaintiff, and a refusal on the part of the Defendant, was necessary to entitle the Plaintiff' to recover, is not well founded.

It would appear, however, from the testimony and charge of the Court, that the action was tried on the theory that a demand of a deed on the part of the Plaintiff was necessary. And it seems that the Plaintiff testified, (without objection on the part of the Defendant,) that he had made a demand of the Defendant lor a conveyance of the lot in question. And the Defendant asked the Court to charge.the jury, “that if they find tlie work was done by Plaintiff under a parol agreement, to be paid for in a lot of land, that he cannot. recover for Ms work and labor until he has made a demand for the conveyance of the lot, and a refusal to convey.” The Court charged as requested. The Court also further charged substantially to the same effect, though in different terms, precisely as requested by the Defendant. On this ground, therefore, the Defendant has not been prejudiced by the evidence or charge of the Court.

The judgment below is affirmed.