Cody v. Butterfield

• Citation: 1 Colo. 377
• Parties: CODY v. BUTTERFIELD.
• Decision Date: 01 February 1871
• Court: Supreme Court of Colorado

1 Colo. 377

CODY v. BUTTERFIELD.

Supreme Court of Colorado

February, 1871

Appeal from District Court, Gilpin County.

Messrs JOHNSON & TELLER, for appellant.

Mr HUGH BUTLER, for appellee.

WELLS J.

This was an action of assumpsit commenced in the Arapahoe district court; the venue was afterward changed to the Gilpin district court, where a trial was had and judgment given for the plaintiff.

The plaintiff below, in several counts, declared upon a promissory note, purporting to have been executed to him by the defendant by one Elijah Cody, her agent. The defendant pleaded the general issue, without verification and payment post diem. The cause was put at issue on the 20th day of February, A. D. 1868.

On the 3d day of June, A. D. 1869, and at the May term in that year of the Gilpin district court, the defendant moved for a continuance, upon her own affidavit of the absence of certain witnesses, the material portions of which are hereafter set forth; this motion the court overruled.

On the trial the plaintiff produced a note corresponding to that described in the declaration, and proved that the signature thereto was in the handwriting of Elijah Cody. That, from 1861 to 1866, Elijah Cody resided in Denver, and was the agent of plaintiff, who was engaged in the sale of millinery and dry goods; that, in 1865, defendant had accounts with different banking houses in Denver; that Elijah Cody generally made the deposits which went to the credit of these accounts, and defendant generally checked against them; that Elijah Cody attended to defendant's affairs during the periods of her absence, when engaged in the purchase of goods, that he was about defendant's store both then and at other times; one witness spoke of this relation of the parties as existing from 1861 to 1866, and upon cross-examination, testified that Elijah Cody was the husband of defendant (though at what time, was not expressly stated) and that they resided together. It was further proven that Elijah Cody died at some time prior to the trial, though the date of his decease was not shown.

Upon this evidence, the defendant prayed instructions, substantially as follows: 1st. There is not sufficient evidence in the case to enable plaintiff to recover. 2d. There is no evidence that any of the plaintiffs for whose use this suit is brought have any interest in the note offered in evidence, and unless such interest is shown, they cannot recover in this action. 3d. If defendant, at the time of giving the note offered in evidence, was a married woman, the plaintiffs ought to have sued her husband with her, and unless the jury believe, from the evidence, that her husband was dead at the time of the bringing of this suit, they must find for defendant.

All the instructions were refused; a verdict was found for the plaintiff and judgment given thereon.

Appellant now assigns for error, among other things: 1st. That the court overruled her motion for a continuance. 2d. That the court erred in refusing the instructions prayed by her counsel. 3d. That the verdict is against the evidence and the damages excessive. 4th. That the court gave judgment upon the verdict, and such judgment is against the law and evidence.

We think the defendant's motion for a continuance was properly overruled.

The affidavit, upon which this application was based sets forth, that defendant could not safely proceed to a trial, on account of the absence of two witnesses named; that she expected to prove by said witnesses that the claim sued on in this case was for a sum of money alleged to be due for freight upon certain goods freighted by plaintiffs for defendant; that the witnesses were present at the time the goods were received and assisted in unpacking them and observed their condition, and that said goods were badly damaged by having become wet, and by rough and improper handling on the part of said plaintiffs and their employees, and that defendant had no other witness, etc.

We think the facts intended to be proven by the absent witnesses were not set forth with sufficient particularity; the rule is, that the party seeking a continuance for the absence of testimony must, in his affidavit, set forth the facts to be proven with such particularity that the opposite party may, if he see fit, admit them and proceed to trial. McBain v. Enloe, 13 Ill. 76.

This is an alternative to which the opposite party is entitled, and he ought to have precise information as to the matters upon which he is to make his election.

Now, in the affidavit, it is not alleged to what extent the goods were injured, nor that defendants could show, by these or other witnesses, the amount of the damages occasioned by the alleged negligence of the plaintiff, nor what the amount of this damage in fact was, but the only allegation is, that the goods were 'badly damaged,' and if the witnesses had been present, testifying to this and every other fact set forth in the affidavit as to be proven by them, their testimony, of itself, and without other facts shown, could not have either barred the action or mitigated the damages. Not only would it not have been material, but, upon motion, must have been stricken out.

It may be said that the testimony of the particular witness is none the less material to defendant's case, because not sufficient to establish it as a whole; but it was said in Baily v. Hardy, 12 Ill. 459, that 'where testimony is important only in connection with certain facts, those facts should be set forth or referred to, so that the materiality of the evidence may be apparent to the court. The court is not to presume that a state of facts may arise which may render the testimony important.'

We think this decision ought to be adhered to in our courts; the party seeking a continuance ought to make it appear affirmatively to the court not only that, upon...