Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-08-14
SUPREME COURT DECISION

In the Supreme Court of the State OF
Nevada. (No. 1907
mo. 1899
l.. Yori, Respondent,
Elkin COIN, Appellant .-.
Appeal from the District Court of the
State of Nevada, in and for Doug
las county Hon. c. f. Mack.
Judge
Alfred Chartz, for Respondent.
D. w. Virgin, Samuel Plat and
Trenmor Coffin, for Appellant.
Opinion by Fitzgerald, ].
Plaintiff recovered judgment in the
trial court for the sum of $I8,2366o
being, as plaintiff alleged. the balance
due on a contract OF sale by the plain
tiff to the defendant of certain per-
sonal property; the contract price
thereof being $2o,246.oo, and the de-
fendant having paid the sum of
$2oo5.oo, thus leaving unpaid the said
sum of $I8,2366o.
Defendant denied that the contract
was for the sale of the personal prop
erty only, but alleged that certain
lease and leasehold right was to be as
signed by plaintiff to defendant, and
that the sum of $2o,246.6o was the
price agreed to be paid for both said
personal property, and said lease and
leasehold right Defendant further al
legged that the plaintiff failed and re-
fused to assign said lease and lease
hold right to him. thus breaking the
contract
Defendant pleaded the above men
toned breach of contract as his de-
tense, and claimed of the plaintiff dam
ages for said alleged breach the sum
of $4,000.
Defendant also alleged that the said
personal property was not worth the
sum OF S2o,246.60, or any greater sum
than $4,000.
The defendant appealed from the
said Judgment and also from the order
of the trial court denying his motion
for new trial.
The defendant moved for a continu-
ance in the case: the court denied the
motion, and defendant assigned the
said denial as error The facts con
they appear by the settled and cert
fed statement on appeal, are as fol
lows:
uance of said cause upon the groun;
of the unavoidable absence of nateria
and necessary witnesses in said cause
to-wit: the absence OF Joseph Fried
man and Minnie Friedman, his wife
Said motion was made upon the fol
towing affidavit. to-wit:
In the District Court OF the FRS
Judicial District of the State OF Neva
da. in and for the County OF Douglas
L. Yori. Plaintiff. vs.. F. Cohn, De
PENDANT
State of Nevada, County of Dougla
IS. Elkan COIN being duly sworn o
oath deposes and says. that Josep
Friedman and his wife Mrs. Friedma
are important and material wltnesse
for him. defendant, upon the trial {
the above entitled cause. That bot
of said witnesses are at present ;
Stockton. San Joaquin county, Cal
iornia, and that on account of tn
sickness of said Mrs. Friedman, bot
of said witnesses are unable to atten
and be present at the trial of the abo,
entitled action The affiant. the sal
defendant, cannot safely proceed
trial in the above entitled action will
out the presence and testimony OF bot
OF Sdlu Witnesses, dllu tlldt lS Ndllli'
show or prove the same matters ar
facts which he expects to prove
said witnesses by any other person
and particularly as to the said witne
Mrs Friedman. That by the witne
Joseph Friedman, afiant expects
prove and show and establish all
the allegations, matters, facts al
statements set out and contained
+0 %ho ,,1a I
in the above entitled action, i. e. e
poets to prove the agreement betwe
plaintiff and defendant and the no
performance of said agreement on t
part of said plaintiff as stated in sd
answer, and all other material all
cations therein That by the said W
ness Mrs. Friedman, ahiant expects
prove all of the allegations contain
in his said answer concerning the no
delivery of the property which the {
PENDANT claims in his answer that plai
tiff sold him. And the plaintiff has a
did deprive this affiant, the said
PENDANT. of whatever of possession
partial possession of the said pre-
erty he had previously placed him
or delivered to him. and that pla
tiff has and did by fraud, force a
arms. etc, as alleged in this answ
retake and recover from defends
whatever of partial possession he /
previously given and delivered of S
property and ranch to defendant.
other matters alleged in said answ
That affiant has used all practica
and possible diligence in endeavor
to obtain the presence and attenda1
of both of said witnesses since the s
ting of this action for trial. That
said witnesses wrote to this affl
that they would be here at the t
of this action and according to his b
knowledge, information and belief S
witnesses are only prevented from
ing here by said sickness of said N
Friedman and if the trial of this
ton is postponed for short time,
fant has no doubt but he can obt
the attendance of both said witness
That at the time this case was set
-. II IN al