Opinion by
The entry on the record of the trial of this case states that,
In the case of Whitehall Township, 47 Pa. 156, Strong, J., said: “ It is true that great respect is due to the construction given by a subordinate court to its rules of practice. This order, however, can hardly be called a rule of practice. If it could it has never been understood that the decision of the
While we do not ordinarily regard a continuance, or a refusal to continue, the trial of a cause in the common pleas, as reviewable in this court, a refusal to continue which subjects parties to a trial without witnesses, and is in violation of a written rule of the court is reviewable on error and requires our intervention if assigned for error. The first assignment is sustained.
We think the second assignment also, is sustained. It is true the counsel for the plaintiff went upon the witness stand and testified that the defendant had admitted to him that two written orders which he showed the defendant were his orders, and that they did specify two great-gross of pins and needles respectively, and that the plaintiff had sent him two great-gross of each, but he also testified that the defendant said he refused to take them or pay for them because he had not ordered them, and he did not say that the defendant admitted he had received or accepted them, or that he had agreed to the price charged, or to the quality of the pins. As the defendant was necessarily absent in another county he had no opportunity to testify in reply to plaintiffs’ witness, or of explaining the seemingly contradictory position taken by him, according to the testimony of the plaintiffs’ witness, in denying that he had ordered two great-gross of the pins and needles, and yet admitting that he had given the orders. We think the testimony was insufficient to warrant the court in giving a binding instruction to the jury to find for the plaintiffs. The very important fact as to whether the goods had been received by the defendant, or whether they had been shipped to him in such a manner as to justify an inference that they had been actually delivered, was without proof either by admission of the defendant, or by any other kind of testimony. Whether the jury might have inferred such delivery if the testimony had been left to them, is another question, but the court could not decide it as matter of law. We sustain the second assignment.
Judgment reversed and new venire awarded-