Mackubin v. Clarkson

• Decision Date: 01 January 1860
• Citation: 5 Minn. 193
• Parties: CHARLES N. MACKUBIN vs. JAMES CLARKSON.
• Court: Minnesota Supreme Court

5 Minn. 193

CHARLES N. MACKUBIN vs. JAMES CLARKSON.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey County.

Points and authorities for appellant: —

1. The court below erred in denying the motion for continuance, and overruling the same. The affidavit is sufficient. Minn. Stat. 558, § 12.

2. The defendant was entitled to a judgment upon the pleadings, and the district court erred in denying the motion for judgment. First, by the complaint and reply it appears that there was a special agreement between the parties, by which the plaintiff was to perform work and labor for the defendant, to be paid for, a part in cash and a part in real estate; that in pursuance of said agreement plaintiff performed the work, and was paid in cash the amount he was entitled to, and has brought this suit for that portion for which he was to be paid in real estate. The plaintiff should have brought his action upon the said agreement, to recover damages for an alleged breach. He cannot maintain his action on the "quantum meruit" for work and labor, unless he shows that the agreement has been abandoned and the contract rescinded. See Burlingame v. Burlingame, 7 Cow. 92; Liningdale v. Livingston, 10 Johns. 36; Clark v. Smith, 14 Johns. 326; 18 Johns. 456. Second, the agreement was not void — at most, it was only voidable on the part of defendant. There had been part performance by both parties under the agreement. The plaintiff cannot treat it as void, and thus commit a fraud upon the defendant.

Points and authorities for respondent: —

1. The affidavit for a continuance of the cause was fatally defective. First, in not showing due diligence to procure the attendance of witnesses. Second, in not showing that the witnesses were material. The party cannot be permitted to judge of the materiality, that must be shown either by advice of counsel after a statement to him of what the witnesses will testify to, or by stating in the affidavit what they will testify to, so that the court may judge of it.

2. The motion for judgment on the pleadings and notwithstanding the verdict, and for a new trial, were all properly overruled. Because, — The contract set up in the answer to convey the lot to plaintiff was verbal, and within the statute of frauds, and absolutely void; it could have no force to bind or affect in any way the rights of either party. To hold that an agreement absolutely void bound plaintiff to make a demand for the lot would be a contradiction. If void, it could have no effect whatever to bind either party. And if the agreement had been valid, the defendant having rescinded it and rendered it impossible for plaintiff to perform, the plaintiff was at liberty to abandon the special contract and sue on the quantum meruit. On this point see Green v. Green, 9 Cow. 46; Kidder v. Hunt, 1 Pick. 328; Stewart v. Travis et al. 10 How. Pr. R. 153; Liningdale v. Livingston, 10 Johns. 36; Raymond et al. v. Bearnard, 12 Johns. 274; King v. Brown, 2 Hill, 485.

H. L. Moss, for appellant.

Wm. B. McGeorge, for respondent.

ATWATER, 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 Hageman 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 subpœnaed him, had no 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 his residence or whereabouts; but that he was expected to return to the state; and that deponent expected to be able to procure his testimony at the next term of the court. The affidavit did not state what was expected to be proved by either witness.

There was no error in the refusal to grant a continuance on this affidavit. There was no diligence whatever shown to procure the attendance of Hageman. If a party chooses to rely upon the promise of a witness to be in attendance, without subpœnaing him, he does so at his own risk, and cannot, on that ground, claim a continuance if the witness does not keep his agreement. Beaulieu v. Parsons, 2 Minn. [37]. The affidavit is also defective in not showing wherein the witnesses were material. The facts which the party proposes and expects to prove by the witnesses should be set out in the affidavit, so that the court may judge of the materiality of the witness. The party himself is not to be the judge of the 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. The least that can be required on this point is, that the party should state that he has stated the facts which he expects to prove by his absent witnesses to his counsel, and that he is advised by his counsel that he cannot safely proceed to trial without the...