
    D. R. Farrand, vs. J. C. Bouchell.
    
      Where defendant submitted the usual affidavit for a continuance, on account of the absence of witnesses, his daughters, and plaintiff offered to admit as their testimony, whatever defendant ivould state that they would prove-, the court presuming that plaintiff 7/iast hnoio wkafhis daughters would prove, ordered on the fiase for trial: and new trial for this cause refused.
    
    
      Motion for continuance being generally a matter of discretion, depending on its peculiar circumstances, can seldom be the ground of a new trial. >
    
      Interest is not alloiued on a demand for work or labor done, goods sold, or any other account not liquidated in writing, even though the- money be payable at a day certain.
    
    
      In no case where the action of assumpsit is for woi-k and labor, iy-c. inhere the nature of the contract furnishes the standard of assessment, can the jury alloio arbitrary damages.
    
    It appearing in evidence that the defendant being about to build a bouse and the necessary out-buildings, wrote to bis friend in New York to procure .him a good mechanic to undertake the work. The plaintiff agreed to undertake,' provided he could be made sure of a job which would justify him in going such a distance from home, and subjecting himself to suck inconveniences as he must necessarily incur by-such an undertaking.
    The defendant then sent on a description of the dwelling-house and other buildings which he wished to have erected. The plaintiff agreed to undertake, the work, and to bring with him two apprentices, upon the condition that the defendant would pay him three dollars per- day, (his wages to commence from the time he left home,) pay his expenses out, and find him during the time he should be engaged in the work. These terms were acceded to on the part of the defendant. The plaintiff commenced the work and proceeded with it until some of the out-buildings were completed and the dwelling-house nearly finished. Some difference then took place between them, and the plaintifl’ left his employment. The defendant consented to dispense with his further sendees, provided he would finish the dwelling-house. The plaintifl’ alleged that the materials were Hot furnished; and it was very clearly proved that all the materials were not provided; hut whether there were enough to enable him to go on with the work until the others were provided, did not very satisfactorily appear.
    In addition to the demand for labor, pursuant to the terms of the original contract, there were some other small items for money lent, extra work, &c.
    The defendant set up a discount for a medical bill and attendance on the plaintiff and his apprentices while sick, and -some other services rendered him, and some small articles delivered in payment. It was also contended that the work was not well done, and that the plaintiff had forfeited his claim by abandoning his work before it was finished; or, at least, if the plaintiff had not forfeited Iris whole claim, the defendant was entitled to a deduction for the damages which he had sustained by such breach of contract. When the cause was called for trial, the defendant moved to postpone it, on account of the absence of two of his daughters, who it was alleged, were material witnesses, and were necessarily absent. The plaintiff, however, agreed, that if the defendant would state upon oath what he expected these witnesses to prove, he would admit that they would swear to the facts so stated, and that it should have the same effect as if the witnesses themselves deposed to the same in court.
    The cause was then ordered on for trial. On the part of the plaintiff it was contended, that he was not only entitled to recover the amount of his demand for work and labor performed, but that he was also entitled to interest upon it, and damages for his expenses in attending court, for delay, loss of time, &c.
    The court instructed the jury, that the plaintiff was entitled to recover according to the original terms of the contract, but that neither interest nor damages had ever been allowed in this state on demands of this sort. But that if they were of opinion the plaintiff had abandoned the work without any just cause, and that the defendant had been injured thereby, they might deduet from the value of the work the amount of damages which they supposed he had sustained. The other items, both on the part of the plaintiff and defendant, were left to the consideration of the jury.
    The jury found a verdictfor the plaintiff for one thousand eight hundred and forty-one dollars fifty-four cents. ($1842 54.)
    From the several items of which the plaintiff’s demand was composed, it was apparent that the jury allowed the whole demand, except the interest; and that they allowed $357 by way of damages.
    A motion was now made for a new trial, on the following grounds:
    1. Because the defendant was ruled to trial, contrary to the rules and practice in the continuance of causes.
    2. Because the jury allowed damages, contrary to the established principles of law.
    3. Because many items of the defendant’s discount were disallowed, to which he was entitled.
    4. Because the verdict was contrary to law and evidence.
   The opinion of the Qourt was delivered by

Mr. Justice JYott.

The various shifts to which a party will frequently resort to effect the postponement of a case; the perseverance with which one will press for a trial when he finds his antagonist unprepared; the zeal with which. the counsel enter into the feelings of their clients, and the difficulty of getting at the truth when each party is determined to take all advantages of the other, which circumstances may throw in his way; all combine to render a question of postponement one of the most difficult and embarrassing that we -meet with in the administration of justice. And although there are certain general rules by which courts are usually governed; yet among' the infinite variety of circumstances which contribute to render a case an exception to the general rule, almost every one may be resolved into a question of discretion, which must be governed by its own particular circumstances. And there would be no end to delay, if the court were not permitted to exercise a liberal discretion inlaying the parties under such reasonable terms as are calculated to facilitate the progress of a suit and to promote the ends of justice. In the present case, the witnesses were the defendant’s own daughters. That circumstance alone was calculated to excite suspicions that he had not used all the diligence that might have been employed to procure their attendance. It certainly cannot be believed that he did not know what they could prove. But even that was not required of him; he was only required to state wdrat he expected to prove by them, and that was to be received as. if it was actually proved. And surely a person can have no cause to complain when his rights are to be determined on a- statement of facts made out by himself. A question of postponement most generally depends so much upon ilie discretion of the court, that it can seldom afford a ground for a new trial; and the court do not see that such extraordinary rigor has been used on this occasion, as to render this case-an exception to the general rule.

With' regard to the second question, I could never see any good reason why interest should not be allowed on an account for work and labor done,, or goods sold and delivered, or on any? other open account, where the money is withheld after time of payment is past. But the law appears to be otherwise settled. In the case of Alexander Knight vs. Thomas R. Mitchell, 2d Treadway Rep. 668, it was decided, that the plaintiff, who had been the defendant’s overseer, was not entitled to interest, although the defendant had agreed to pay a stipulated sum at the end of the year. And that opinion seems to be conformable with the English decisions on the- same question. For although it might be inferred from the observations of Lord Ellenborough, in the case of De Havilland vs. Bowerbank, 1 Campbell, 50, that interest ought to be allowed in all cases where there is. a contract to pay money on a certain day; yet, in the case of Gordon and others, vs. Swan, and others, 2 same 429, 430, his Lordship observes, that what he said in that case must be taken to refer to written instruments, such as promissory notes and bills-of exchange, which are there put as example^ See also, N. Goodard, ads Chas. fy John J. Bulow, 1 Nott & M'Cord, 44.

It does not appear, however, that the jury have taken the interest as the measure of damages in this case, but that they have allowed an arbitrary sum to double that amount. There is no doubt that damages, at the discretion of the jury, may sometimes be given in an action of assumpsit: As where the action is founded in fraud or deceit; or when a party fails to perform a contract, by which the other party sustains a special damage; or where it is so badly performed as to frustrate en-' -tirely the expectations of the party for Whose benefit it'was Intended. As if the plaintiff, in this instance, had failed to perform any part of his contract, by which the defendant had lost the materials which he had provided for that purpose, or had done the work in such a manner that the house bad been unfit' for habitation. But in no case where the action is for ¡money had and received, goods sold and delivered, or for work and labor performed, which, from the nature of the contract itself furnishes the standard of assessment, are the jury allowed to give more than the amount received, with interest, or the value of the articles delivered, or the services rendered. Rose Rodgers vs. Beatie, 2d Nott & M'Cord, 538.

The other grounds involved questions peculiarly pro-: per for the ‘ consideration of the jury, respecting which the court do not see any reason to be dissatisfied. A new trial, however, must be granted, on the second ground; unless the plaintiff will remit the sum of 357, which the jury have given as damages; in which case the motion is refused.

Huger, Johnson, CRichardson, Gantt, Justices, concurred,  