Cerealine Manuf'g Co. v. Bickford

• Citation: 129 Ind. 236,28 N.E. 545
• Parties: Cerealine Manuf'g Co. v. Bickford et al.
• Decision Date: 22 September 1891
• Court: Supreme Court of Indiana

129 Ind. 236

28 N.E. 545

Cerealine Manuf'g Co.

v.Bickford et al.

Supreme Court of Indiana.

Sept. 22, 1891.

Appeal from circuit court, Bartholomew county; Nelson R. Keyes, Judge.

Action by Richard H. Bickford and others against the Cerealine Manufacturing Company on account. Judgment for plaintiffs, and defendant appeals. Affirmed.

Stanisfer & Baker, for appellant. John C. Orr, for appellees.

MILLER, J.

The appellees sued the appellant on account. Answer that the goods were warranted, and that there had been a breach of the warranty; also a paragraph of counter-claim was filed by the appellant against the appellee, counting upon the breach of warranty, and asking an affirmative judgment for a large sum. The action was commenced August 23, 1887, and, having been regularly set for trial at the May term, 1888, was continued, on affidavit and motion filed by the appellant, on account of the absence of Joseph F. Gent. On the 1st day of October, 1888, the appellant applied for a second continuance on account of the continued absence of Gent, and in support of the motion filed the affidavit of Richard Thomas, which is, in substance, as follows: That the affiant is the secretary of the defendant company, and, in the absence of Joseph F. Gent, vice-president and secretary, is its acting superintendent; that the defendant cannot safely go to trial without Gent. After showing that Gent was a competent and material witness, whose presence both as a witness and as a party having exclusive knowledge of the facts of the defense was absolutely necessary to a proper defense, it states the reasons for his absence and efforts to procure his attendance in the following language: “When said case was set down for trial at the last term of this court defendant caused a summons to be issued for and served upon said Gent as a witness for defendant, and it was his purpose to put defendant's attorneys, in advance of the trial, in possession of the details of the defense, and to be at the trial for the purpose before indicated; but he did not so advise said attorneys, as affiant is informed by them, or any one else connected with the defendant's company, and he was absent, and the case was continued on account thereof. His then failure in respect to the attorneys, and his then and continued absence, were and are because of the facts following: Owing to serious impairment of his health-disease of his heart-said Gent, shortly before the time set for trial at the last term, was ordered by his physician, Dr. Hammond, of New York city, where said Gent frequently was on business of defendant company and for treatment, to go to Carlsbad, a health resort in Bohemia, for treatment, as soon as he could reasonably leave, and said Gent directed the agent of defendant company to procure passage on a steamer for Europe, leaving after said day set for trial; but a few days before said time said agent telegraphed said Gent that, owing to the throng of outgoing passengers, passage could not be engaged earlier than in September of this year, but that he had purchased from a passenger on a steamer to leave on the 2d day of June, 1888, his fare ticket and berth; and he left Columbus on 27th day of May, 1888, and took passage on said steamer, intending, and as defendant believed he would, to return by the 1st of September, 1888. When said telegram was received, and his purpose made known to defendant to leave, there was not time to give notice and take his deposition, even if such deposition would have answered the purpose of the defense, which it would not, for reasons before stated; and, hurried as he was in making preparations to leave, he had not time or opportunity to put defendant's attorneys, or other person, in possession of the data, in detail, of the defendant's side of the case. Said Gent remained at Carlsbad until he went, under the direction of his physician there, to Ragutz, a health resort...