
    STRONG vs. CATLIN’S ADM’R.
    ^ACTION ON ACOOTOST VOIt WORK ANDl JC-ABDR DONE.]
    L‘?k{ is revisadle. — Motions for a contímiahóe, -and-ior-a new trial, are addressed to the sound .discretion of the presiding judge, and his decision is not revisable on error; and -where such motions-aro predio cated on the fact, that the presiding judge has never seen an opinion pronounced in the case by the supreme-court, the principle is still the same.
    
      lielevaney of .evidenee.to prove eonimet — A letter, written by defendant to plaintiff and another, requesting them to publish 'in their newspaper an advertisement of kn Incorporated 'school,-of- which the defendant was one of the trustees, dons not authorize.the publication of the advertisement by the plaintiff alone in his paper, and does not prove an assent hy the defendant to such publication: yet, it being- shown that tho defendant, when payment was demanded of him, made no objection to the publication, but only insisted tbat the account should, have been, charged against the school, and not against himself individually, the letter is admissible evidence, as tending to show .his agency in procuring- the publication in his own name.- v
    Armal from the Circuit Court of Dallas.
    Tried before tbe Hon.- Porter KiNG.
    This case was. before this court at its January term,’, I860, when tbe, judgment of tbe circuit court was reversed, and tbe cause was-.remanded. — -See 35 Ala. 607, Tbe action was .brought by Jobu D. Catlin, (and afterwards revived in the name of bis administrator,) against John M, Strong, “to recover $75, due by account on tbe lOtb January, 1852, for work and. labor done, and materials furnished by plaintiff to defendant, at the defendant’s request”; and was .commenced .on the 24th March, 1857. The defendant-pleaded, “in short by consent, ” the general issue, want of consideration, failure of consideration, tbe statute of limitations of three years, and fraud, in the per- - formance of tbe work. When-;-the cause was called for trial, as the bill of excejations shows, tbe defendant asked a.-,continuance, on tbe ground tbat the opinion of the su~ - p^eme court,. reversing the former judgment, (which, it a was admitted, was not reported, and had never been seen by the presiding judge,) had been lost or'mislaid, and none of the counsel recollected the ground of reversal. The court refused to continue the . cause until a copy of said opinion could-be procured, -and ruled the defendant to trial-.; to which the-defendant excepfed.
    “The plaintiff offered one G-lover as a witness, who testified, that he, as the^collecting agent- of plaintiff’s intes- - fate, in the spring or-fall of 1853, presented to the defend- ■ ant an account for between fifty and seventy-five dollars, , in.favor of said intestate, for printing,an advertisement of ' a school in. Selma, called the Central Masonic'Instituted of- .which the defendant was a trustee ; that the defendant'would not pay’it, and said it should have béen'made out' againt the-school, and uot against him; that witness re*-pOTted'this conversation to said intestate, who told'him to-tell defendant that he had received a letter from him to that effect; that he afterwards saw the defendant again, and told him what the intestate had said ; and that the defendant thereupon replied, ‘If he has a letter from me to-that effect, I will pay it.’' ‘ The plaintiff "then ’offered in evidence a letter from the defendant, dated at Selma;- Sept. - 25,1851, and -addressed to Messrs. Armstrong.. & .Catlin, in the followingwords: ■
    “ ‘Gentlemen : In compliance with my, promise, I endose you an advertisement, which I wash you to give a conspicuous place in your- paper, for three months;. asking the fa» ■ vor of you to call the attention of- the public to- it by.a-’short and appropriate editorial.
    Your obedienfeservant, ,
    Jiro. -M, STRONG.
    “ ‘P. S. As'ours-is a charitable institution,’-» Bhope youv charge will be as moderate as possible.”-
    “The defendant objected to the introduction of said .letter as evidence ; the court overruled Ms- objection, and 1 admitted.it, and the defendant excepted. This was all the:.---ísvidenefe in the case.’."
    
      •The jury having returned a verdict for the plaintiff, the defendant moved,for a new trial;; but the court refused his motion.
    The. rulings of the court on the application for a continuance, on the -evidence, and on -the .motion for a new .trial, are now assigned as error.
    Geo. W. Gayle, -for the" appellant.
    JBykd & MORGAN, ■xontfu.
    
   STONE, J.

It has been uniformly held in this court, that the .rulings of the primary courts, in granting or refusing,-applications for-continuance,-and for new trials, are not revisable. -Such applications are addressed to the sound discretion of the presiding judge;; and the question is not varied, if -the case has previously been decided by this court, and the -opinion .pronounced here has not been seen by the judge presiding in the court below. — Shep. Digest, 698, § 9; Spence v. Tuggle, 10 Ala. 538; Phleming v. The State, Minor, 43 ; Starr v. The State, 25 Ala. 49.

The only other question presented by this record, relates to the admissibility in evidence of the defendant’s letter .to Gatlin & Armstrong. When this case was before in this court, (35 Ala. 6-07,) we decided, that the two facts, that Gatlin . & Armstrong received the defendant’s said letter, and that-the plaintiff’s intestate performed the services, •did not, without mere, entitle the plaintiff to recover. We added : “ Whether -there may not be some other ground from which the defendant’s assent to the terms complied with by the plaintiff may be implied,' will be a subject of inquiry on a future trial. It may ,be, that the defendant will be bound, if he knew that-theplaintiff was publishing the advertisement in his paper, while the publication was .in progress, and failed to dissent from it.”

It is certainly the law, that if A request B to perform certain services for him, and C perform the services, with the knowledge and approbation of A, an implied promise arises from A to pay C what those-services are worth; and In proving such a- contract-, A’s request to B would be competent evidence, to prove that' A desired the services-should be performed. Knowledge that one was performing services which another had been requested or employed to perform, without dissent from-the promissor, is a legitimate circumstance to be laid before the jury on the question of ratification, or assent;

In the present case, a letter.-.-was addressed to Messrs-Catlin & Armstrong, requesting them to-publish an in — ' closed advertisement in-.a conspicuous place in their newspaper, and to direct attention to it m.-an- editorial. The plaintiff produces that letter on-, the trial. When Mr. Strong was asked for tlie money- on an account for those services made out against-him, and in favor of the plaintiff,he raised no objection.-on the gfound that the publication-had been made by Catlin, instead of Catlin & Armstrong. His objection was, that the account should have been-charged against. the institute, and not against himself. * Urging a-specific objection, .his silence on all others was,-, at least, a circumstance tending to show that he waived all others. — 3 Phil. Ev. (4th Am. ed.) 445-6 ; 2 Greenl. Ev. § 601; Fireman’s Ins. Co. v. Crandall, 33 Ala. 9.

Coming to the conclusion- that the reply of Mr. Strong.-, to Mr. Glover tended to show that he raised no question» on the matter of the person by whom the publication had been made — that he only contended that the charge should be against the institute — the letterwas certainly competent evidence, as conducing to prove that Mr. Strong-.had been-instrumental in having the publication-made, and that his request was in his. own name, charging not the institute, . but himself, for the payment of.- the bill.. The testimony was admissible.. Whether-sufficient-or not,,.is a question not presented for our determination. — Hardin v. Turner, 9 Ala. 110 ; Addison on Contr. 53-4-5 ; Higgins v. Hopkins, 3 Exch. Rep. 163 ; Dotz v. Wilson, 14 Johns. 378 ; Shep. Dig. 616, § 473.

Affirmed..  