#### Winslow vs. Bradley and another.

An affidavit for the continuance of a cause to procure the testimony of a *co-de-fmdant,*who is alleged to be a material witness, should disclose *the*substance of the testimony expected to be given by him, so that the court can determine its materiality.

An averment in a complaint that the defendant is indebted to the plaintiff for goods (of over the value of §50} bought of him in the year 1857, upon which,' in August of that year, the defendant paid a part of the price, leaving a balance due, &c,, implies that the goods were delivered to the defendant, and is not objectionable on the ground that it does not show the contract to have been valid under the statute of frauds.

APPEAL from the Circuit Court for *Jefferson*County.

This actiou was brought, in January, 1860, against *Bradley & Campbell,*as partners; and the complaint alleged that the defendants were indebted to the plaintiffs for railway ties *“*bought by them in the year 1857, from Winslow & Harvey,” the contract price being $1512.05, of which the defendants, in August, 1857, paid the vendors $850, leaving a balance of $662.05, due and unpaid, which had been, assigned to the plaintiff In March, 1861, the defendants filed a joint answer, and at the September term of that year, moved for a continuance of the cause upon two affidavits, the substance of which is stated in the opinion of the court; and the motion was overruled. The defendants also *objected to*the admission of any evidence upon the trial, on the’ *395ground that the complaint did not state facts sufficient to constitute a cause of action, and the objection was Yerdict for the plaintiff; motion for a new trial overruled, and judgment.

May 15.

*Harlow*Pease, for appellant:

The continuance of a cause on account of the absence of a material witness, is, on the first application, a matter of right, unless it appears, by counter affidavits or otherwise, that the object is delay. 5 Cow., 15; 6 id., 577; 7 id., 869 ; 9 Wis., 497; 1 Burr. Pr., 422-3. The affidavits in this case were sufficient. 2. The complaint does not show that the contract for the sale of the ties was in writing; nor that any part of them was delivered; nor that any part of the purchase money was paid at the *time*of sale, and is therefore defective. Abbotts’ PL, 80, note E ; Yan Santv. PL, 266-8; 9 How. Pr. R., 365.

*L. B.*Caswell, for respondent,

upon the last point, cited 14 How. Pr. *R,*490; 2 E. D. Smith, 401; 17 Barb., 141; 25 Barb., 465 ; 2 Kern., 437; Howard’s Code, 196 ; 15 Barb., 365; 13 How. Pr. R., 360. The allegation of part payment is sufficient to take the case out of the statute of frauds. Browne on Stat. Frauds, 352 ; 30 Barb., 265; 33 id., 543.

*By the*Court,

Cole, J.

We do not think there was any abuse of discretion on the part of the circuit court in denying the motion for a continuance in this case. The application for a continuance was founded on two affidavits, one made by the appellant, Bradley, and the other by the attorney of the appellants, Mr. Pease.

Mr. Pease deposes in substance in his affidavit, that he was attorney for both defendants; that *Campbell*made a statement of his case to him and the facts within his, *Campbell's,*own knowledge, upon which he relied for his defense to the action, which he expected to prove upon the trial by his own testimony, and which could not be proved by any other person ; that deponent believed such statement was fairly and truthfully made, and showed that his client had a good defense to the whole action upon the merits ; further, that in November, 1860, *Campbell*went into the interior of the state *396^■'e:x;as’ where he supposed be now was; that *Campbell*wrote in May, .1861, saying that be expected to be present at the term of the circuit court of Jefferson county, but that owing to tbe rebellion, blockade, and restrictions of tbe local authorities in tbe *south, Campbell*bad been unable to return, and if a continuance were granted,' be believed bis client would be at tbe next term of court.

Bradley, in bis affidavit, states in effect, that be bad a good defense to tbe whole action upon the merits, wbicb be expected to establish by bis co-defendant, *Campbell;*that be could not safely proceed *to*trial without tbe testimony of *Campbell,*who is in Texas, but is unable to return home or have his testimony procured by commission, on account of tbe rebellion and convulsions existing in tbe south.

The above constitute tbe material portions of tbe affidavits relied on in support of tbe motion for a continuance. And while giving them their full scope and effect, we still think they are insufficient to authorize tbe granting of tbe application. It will be noticed that neither affidavit states what facts it was expected *Campbell*would testify to on tbe trial; It is stated that he is a “ material witness,” and that tbe facts constituting the defense were within bis personal knowledge, &c. But tbe affidavit should at least have stated tbe substance of tbe testimony expected to be given by tbe absent party. *Campbell*was a party to tbe suit, directly interested in tbe result, and might have stated things to bis attorney wbicb be might not have been willing to testify to on tbe witness stand. At all events, it is easy to understand why a party to tbe suit may have a stronger motive than a disinterested witness, for keeping out of tbe way for tbe purpose of postponing tbe trial or delaying tbe judgment. And it is not too rigid a rule, to require, in case of an application for a continuance on tbe ground of tbe absence of a party, who is a material witness, that tbe affidavits should disclose fully tbe precise facts, or tbe substance of tbe testimony, expected to be proven by such party. Tbe court can then determine whether such testimony is material or not. An application to postpone a trial' on account. of the absence of a party, stands upon somewhat different grounds from an applica*397tion to postpone it because of tbe absence of a disinterested. witness. In tbe latter case, a party may use all gence to bave bis witness present at tbe trial, yet fail on account of some neglect of tbe witness bimself. In bis own case, be can control bis own'actions, and, if not able to be present at tbe trial, can take steps to bave bis deposition taken. If a party eañ obtain a continuance by merely making an affidavit that an absent co-defendant is a material witness, it will operate very unjustly in, many cases. Certainly it should appear that tbe application for continuance is made in entire good faitb, and not for delay ; and there is no hardship in requiring that tbe affidavit disclose tbe substance of tbe testimony expected to be given by tbe absent party.

An objection is taken to tbe sufficiency of tbe complaint, but we think it good in substance. If not sufficiently specific and clear, tbe defendant might bave made bis motion that it be made more certain. Still, by tbe strongest implication, the averments of tbe complaint show that tbe railroad ties were delivered to and received by tbe defendants.

We are of tbe opinion that there is ño error in tbe record, and that tbe judgment of tbe circuit court should be affirmed.