Bender v. Freidrich

McAdoo, J. There are twenty-eight assignments of error in this case. The most of them require no notice in this opinion. The first error alleged which we notice is, that the court should not have sustained the motion to strike out that part of defendant’s answer which set up the plea, that time should have been given the defendant in which to gather and sell the stock and make up the amount, and that this was a fact to be passed on by the jury. ' We see no error in this ruling of the court. The contract, or deed of sale, and the note were parts of the same transaction. They must be taken and considered together. As the date of the maturity of the note was fixed at a certain time, it must be understood that the whole contract matured at that time. It is assigned as error that the court overruled the motion for a fourth continuance. We see nothing in the matters stated in the motion of such a character as to justify this court in invading the discretion of the District Court, conferred by statute in all cases after a second continuance. That a case might arise which would justify this court in holding it to be error in District Court to overrule a fourth application for a continuance, we can well conceive; but we do not think this a proper case in which to do so. The defendants plead, under oath, a failure of consideration, and specifically set up the matter and the manner - of such failure of consideration. [278] . It was error in the court below to .exclude: testimony in support of that plea, and refuse charges based upon such plea and proof. For this error, the judgment must be reversed and the cause remanded for another trial. Reversed and remanded.