
    Diebold v. Powell et al.
    1. Whether or not the continuance of a cause shall be granted or refused, is a matter of judical discretion, and error can not be predicated of the-action of the court in that behalf, unless in case of an abuse of that discretion.
    2. P. sued D. for merchandise, claiming the contract to be that the merchandise was deliverable on the cars at K., the beginning of the railroad route while D. claimed it was deliverable at M., the end of the railroad route. D. having received and paid for three car loads, denied having received any more. In this state of the case it is competent for D. to show that only six car loads in all had been shipped to him from K. to M. during the time, and that three of the six were shipped by a party other thanP..
    Error to tbe District Court of Marion county.
    
      Powell & Bro. brought suit in the court below to recover of Diebold, the sum of $805, for 23,000 feet of walnut lumber sold and delivered in the cars at Richwood, Union county, Ohio, prior to 17th of November, 1870. The payment of $500 on account is admitted, and judgment asked for the balance, $305, with interest from November 17,1870.
    The answer denies the purchase of 23,000 feet of lumber, and defendant avers that on or about 17th November, 1870, he bought of plaintiffs, 15,000 feet of lumber at $35 per M., to bo delivered on the cars at Marion, Marion county, Ohio, free of charge to him ; that the plaintiffs failed to do as they had agreed, only furnishing a less amount, and of inferior quality; that defendant, therefore, hfxd overpaid the plaintiffs, and sets up a counter-claim to the extent of $147.15050. A reply denies the allegations of the answer.
    Upon the first trial, a verdict was found for the plaintiff, for $340.: Upon the second trial, there was also a verdict for the plaintiffs, in the sum of $287. A motion 'for new trial was overruled, and bill of exceptions taken, embodying all the testimony.
    In the course of the trial the testimony of the agents of the A. & Q-. ~W. R. R. Co., at Richwood, was given and the books of the railroad offered in evidence. These books and the testimony of the agents show that in October and November, 1870, six Carloads, and no more, of walnut lumber, were shipped from Richwood to Marion, to Diebold. The dates of the shipments are given, and the number of the way-bills, for the purposes of identification. The books or way-bills, however, while they show who was the consignee, do not show who -was the consignor, except in a single instance. In that one the Powells are the shippers. Neither can the agents tell who shipped the lumber. Of the six cars so consigned to Diebold, one was shipped October 18th, one October 19th, and one October 20th; the other three November 16, November 17 ,and November 21.1870.
    Diebold then offered in evidence the deposition of Clark Decker, the important part of which was ruled out — that part tended to show that Decker shipped to Diebold, from Richwood to Marion, three car loads of lumber, on or about the 18th, 19th and 20th. of October, 1870.
    "William Graham, who wras in the employ of Decker in the fall of 1870, also gave his deposition, in which he states that he helped Decker to load three cars at Richwood, and generally corroborates Decker ; all of which was ruled out, due exception being taken.
    When the case was called for trial in the court below, defendant being absent, his counsel moved for a continuance, and various affidavits pro and con were offered, but the continuance was refused. This refusal is assigned for error.
    The court of common pleas rendered judgment on the verdict of the jury rendered in the second trial. A petition in error was filed in the district court, and the judgment affirmed, whereupon a petition in error was filed in the supreme court.
    
      H. T. Van Fleet, for plaintiff in error.
    
      De Witt & Hoffman and Johnson & Scofield, for defendants in error.
   Wright, J.

With regard to the matter of continuance, Diebold, the defendant, was in Oiucinuati at the time his trial came on, aud avers that he was sick there and unable to travel. The fact of any serious indisposition is severely contested, and the matter is so doubtful in its appearance, that a court of error could not undertake to interfere. Questions of this kind are within the sound discretion of the court before which the cause is pending, and nothing short of an abuse of that discretion would justify a reversal. Perhaps a case might be made, where a reviewing court would be called upon to act, but such is not "the case before us.

Plaintiffs below claimed that the contract was to deliver 28,000 feet of lumber, on the cars at Richwood, and gave evidence tending to prove that state of ease. Upon the other hand, defendant, Diebold, claimed the contract to be, that the lumber was to be delivered on the cars at Marion ; Richwood being the beginning, and Marion the end of the route. If the contract clearly was, or was admitted to be as plaintiffs claimed it, and that the lumber was deliverable at Richwood, there might have been some degree of plausibility in rejecting the testimony of Decker and Graham. That testimony went to show this state of fact.

The railroad books and agents tended to prove, in fact did prove, as there was no contradiction of them, that in October and November, 1870, six car loads of lumber and no more were shipped from Richwood to Diebold at Marion. Decker’s evidence is to the effect that he shipped three of these car loads himself to Diebold, -so that there were only three car loads left for Powell & Co. to have shipped. The evidence tends to show that Diebold did receive about the amount of three car loads, for which he paid, but he denies having received any more.

If plaintiffs’ view of the case is correct, and the lumber was deliverable at Richwood, it might be irrelevant to show how much was received at Marion. But now comes the defendant and takes issue with the plaintiff', affirming that the lumber was not deliverable at Richwood, but at Marion. If this latter view is correct, it is all important to show that no more than three car loads came to Marion, consigned to him. This he offered to do by showing .that but six cars in all came over the railroad, to him, during the time covering' the transaction. Then Decker shows that of these six he sent three, leaving but three for .Powell, which were received and paid for.

There was error, therefore, in excluding the testimony of Decker and Graham, and for this the judgment must be reversed.

Judgment accordingly.  