Ault v. Rawson

Catón, J. The first complaint to be noticed is, that the court overruled the defendant’s motion for a continuance. That motion was founded on an affidavit of one of his attorneys, stating that the defendant had advised him of the facts to be proved in the defence, and that in his opinion they would constitute a defence to the action, but that he was not advised by what witnesses these facts were to be proved, and that the defendant was unable to attend at the trial by reason of sickness. This affidavit does not pretend to bring the case within the statute, entitling the party to a continuance as a matter of right. This affidavit may have justified a continuance in the exercise of a sound discretion, but we are very clear it did not entitle the party to a continuance as a matter of right. In the first place it did not state what the facts were which were expected to be proved, so that the court could judge of its materiality, and if deemed material, that the plaintiff might have admitted them. Again, it showed no excuse why the party had been guilty of such gross apparent negligence in the preparation for the trial, by omitting to inform his attorneys of the names of his witnesses, and what each would testify to. No prudent party will ever omit this ; and if he does, he must expect to suffer the consequences. When he omits such reasonable precaution, it is asking quite too much that the other party shall be made to suffer for his neglect, by having the trial postponed to another term. Even admitting that the decision of this motion could be assigned for error, we are well satisfied that the court decided properly in overruling the motion. But for the release executed by the plaintiff to the witness Pease, he undoubtedly would have been interested; but that objection was completely obviated by the release, and it is difficult to conceive upon what ground the objection could then be urged. He was competent upon his voir dire to prove the execution of the release. If he was competent upon his voir dire to show that he had had an interest, it was equally competent to show in the same way that his interest had ceased by the execution of a release. It has been even held that the contents of "written documents, and even the most solemn records, may be proved by parol upon the voir dire without showing their loss, and this either to show the witness incompetent, or that his incompetence has ceased, as a criminal conviction, a pardon, or a discharge in bankruptcy. The witness in this case was unquestionably competent, and the court decided right in admitting him to testify. It was for the court to decide upon his competency. His credibility was with the jury. The only other question of sufficient importance to require notice here arises from the refusal of the court to give the second and third instructions asked for the defendant; to understand which it is necessary to advert to the evidence. The suit was brought to recover money belonging to the plaintiff, which the defendant had won of Pease at gaming. Pease swore that he was in the employ of the plaintiff, purchasing produce, for which purpose the plaintiff furnished him money. Of the money thus furnished him the defendant had won of him in gambling about seven hundred dollars. Three hundred dollars of this money he obtained upon a draft which he drew upon the plaintiff", and passed to one Smith. That the plaintiff had authorized the witness to draw on him for funds, with which to purchase produce. That at the time he drew the draft and obtained the money, he designed it for the purpose of gambling with Ault, and not for the purchase of produce. Upon this evidence the second and third instructions were asked as follows: “ If the witness Pease did lose at, games with cards to the defendant the sum of three hundred dollars, which money was received by said witness Pease from Smith, for a draft drawn by Pease upon the plaintiff, sold by Pease to Smith, the plaintiff is not entitled to recover this money in this actioi}, unless he has proved that he has paid the draft. “ If the plaintiff authorized Pease to draw certain drafts upon him to pay for corn, that did not authorize Pease to draw upon plaintiff" for money to be used in gaming, nor did it bind plaintiff to pay drafts drawn by the witness for money to be used in gaming.” These the court refused to give, and we are of opinion they do not express the law as applied to this case. The witness was engaged in the plaintiff’s business, accredited with authority to draw on him for money, and he was bound to pay the draft unless Smith, who took the drafts, knew that the money was to be applied to purposes different from those for which the draft was authorized to be drawn. If any one had to suffer for the want of fidelity of Pease, it was he who had reposed confidence in the witness, and given him credit and authority to draw the draft, and not he who acted in good faith upon that authority. No doubt, as between the plaintiff and Pease, the former might have refused to pay the draft on account of the misapplication of the funds; but that case" could only arise where the plaintiff had dishonored the draft, and Pease had paid it himself. As between the plaintiff and Smith the draft was drawn by authority ; and when it was drawn, it was the plaintiff’s as much as if the plaintiff had sent Pease his promissory note, to dispose of for the same purpose; and when the draft was converted into money that money was the plaintiff’s as much so as if he had negotiated the draft of another person, which the plaintiff had sent him for that purpose, or as if he had sold a horse or any other article of personal property belonging to the plaintiff for the same purpose. We find no error in the record, and the judgment of the circuit court must be affirmed. Judgment affirmed.