Carr v. Dickson

Warner, Chief Justice. The plaintiff sued the defendant on a promissory note for the sum of $133.00, payable to F. W. Sims & Company or bearer, dated 2d September, 1872, and due one day after date. On the trial of the case, the jury found a verdict for the plaintiff for the full amount of the note, with interest thereon. The defendant made a motion for a new trial on the several grounds contained therein, which was overruled by the court, and the defendant excepted. 1. There was no error in overruling the defendant’s motion for a continuance of the case on the showing made therefor on account of the absence of the witness Owens, .inasmuch as the defendant did not state that the witness was not absent by his permission, directly or indirectly, or that he expected to be able to procure the testimony of the witness at the next term of the court, or that the application for continuance was not made for the purpose of delay, etc., as required by the 3522d section of the Code. 2. There was no error in rejecting the evidence offered by the defendant, even if the agent with whom it was insisted the contract was made, had not been dead. All that the defendant proposed to prove was, in general terms, that the note was given by mistake, that the consideration for the same was settled and paid off before the note was given, and that it was given for the amount of a note on John A. Owens. The defendant’s plea did not allege how the mistake occurred in giving the note, nor did the evidence offered show it; neither did the evidence offered show to whom the consideration of the note was settled and paid off before it was given, certainly not to the plaintiff or his intestate, or that either of them had any knowledge thereof, or that it was given for the amount of a note on John A. Owens. Let the judgment of the court below be affirmed.