
    Charles N. Mackubin, Appellant, vs. James Clarkson, Respondent.
    APPEAL EROM THE DISTRICT COURT OR RAMSEY OOUNTY.
    If a party chooses to rely upon the promise of a witness to be in attendance, without subpenaing him, he does so at his own risk, and cannot on that ground claim a continuance if the witness does not keep his agreement.
    Tho facts which a party proposes to show and expects to prove by the witness, should be set out in an affidavit for a continuance, so that the Court may judge of the materiality of the evidence.
    Whon work is done under a special contract which has not been abandoned or rescinded by either party, but remains in fall force, the action must be brought upon the contract, and not upon the common counts. But when a party is working for another under a special contract, and is discharged by the employer, without cause, he is at liberty to regard the contract as abandoned on the part of the employer, and to proceed to recover the value of his labor as though no special contract had existed. It is not necessary that he first make a demand for work, and tho discharge throws upon the employer the burden of justifying it.
    A verbal contract for the conveyance of real' estate is absolutely void by the statute of frauds, and the objection may be taken by either party to the contract, although the other may have fully performed on his part. No demand or tender of a deed, by one party to the other for execution, would make him liable, as there was no legal obligation to fulfil the contract. But where both parties tried the cause, and the Court instructed the jury without objection, upon an erroneous theory that a demand was necessary, they will be deemed to have waived the objection, and a new trial will not be granted on account of tho erroneous charge.
    Points and authorities of Appellant:
    
      First. — The Court below erred iu denying tbe motion for continuance, and overruling tbe same.
    The affidavit is sufficient. Stat. Mirm.p. 558, Sec. 12.
    
      Second. — The Defendant was entitled to a judgment upon the pleadings, and the District Court erred in denying the motion for judgment.
    1. By the complaint and reply it appears that there was a special agreement between the parties by which the Plaintiff was to perform work and labor for the Defendant, to be paid for, a part in cash and a part in real estate. That in pursuance of said agreement Plaintiff performed the work, and was paid in cash tbe amount be was entitled to, and bas brought this suit for that portion for wbicb be was to be paid in real estate. Tbe Plaintiff should have brought bis action upon tbe said agreement, to recover damages for an alleged breach. He cannot maintain bis action on tbe “ qucmtum meruit” for work and labor, unless be shows that tbe agreement bas been abandoned and tbe contract rescinded. See Bu/rlvngame vs. Burli/ngame, 7 Oow. Rep. 92; Langdale vs. Livi/ngston, 10 John. Rep. 36 ; Ciarle vs. Smith, 14 John. Rep. 326 ; 18 John. Rep. 456.
    2. Tbe agreement was not void — at most it was only voida-dble on tbe part of Defendant. There bad been part performance by both parties under , the agreement. Tbe Plaintiff cannot treat it as void and thus commit a fraud upon tbe Defendant.
    3. Tbe Plaintiff having performed tbe work under and pursuant to tbe agreement cannot maintain an action, unless default of tbe Defendant is shown, without first having demanded a conveyance of tbe real estate, and tendered a deed of tbe same to tbe Defendant and demanded its execution. And there is no default on tbe part of Defendant, till be refuses to convey. All of wbicb should appear in tbe pleadings. Fuller vs.Hubbard, 6 Cow. Rep. 13; 7 Cow. Rep. 58; Green vs. Green, 9 Cow. Rep. 46 ; Carpenter vs. Brown, 6 Barb." Rep. 147 ; Lubweller vs. Linnell, 12 Barb. Rep. 512 ; Foote vs. West, 1 JDenio Rep. 546 ; 9 John. Rep, 127 ; Ra/ymond vs. Barna/rd, 12 John. Rep. 274 ; Robb vs. Montgomery, 20 John. Rep. 15 ; Hudson vs. Swift, 20 John Rep. 27; Sage vs. Ramsey, 2 Wend. Rep. 532 ; Llaclcet vs. Hu-son, 3 Wend., Rep. 250 ; Conelly vs. Fierce, 7 Wend. Rep. 129; Blood vs. Goodrich, 9 Wend. Rep. 67; See also Snow vs. Jolmson, 1 Minn. Rep. 48, <md authorities there cited.
    
    4. There was no demand alleged upon defendant to px-ovide woi*k, &c. and a refusal on tbe part of Defendant to furnish it. A mere discharge does not amount to a default, for it might have been but for a day or an hour.
    See same authorities as above cited.
    
      
      Third. — The Court erred in poverruling the motion to set aside the verdict, and for judgment in favor of Defendant, notwithstanding the verdict.
    Voints and Authorities of Bespondent.
    
      First. — The affidavit for a continuance of the cause was fatally defective.
    1. In not showing due diligence to procure the attendance of witnesses.
    2. In not showing that the witnesses were material. The party cannot be permitted to judge of the materiality, that must be shown either by advice of counsel after a statement to him, of what the witnesses will testify to, or by stating in the affidavit what they will testify to so that the Court may judge of it.
    
      Second. — The motion for judgment on the pleadings and notwithstanding the verdict, and for a new trial, were all properly overruled. Because,
    The contract set up in the answer to convey the lot to Plaintiff was verbal, and within the statute of frauds and absolutely void; it could have no force to bind or affect in any way the rights of either party. To hold that an agreement absolutely void bound Plaintiff to make a demand for the lot would be a contradiction. If void it could have no effect whatever to bind either party. And if the agreement had been valid the Defendant having rescinded it and rendered it impossible for Plaintiff to perform, the Plaintiff was at liberty to abandon the special contract and sue on the quantum meruit.
    
    On this point see Qrem vs. Green, 9 Oowan, 45; Kidder vs. Hunt, 1 Pick. '828; Stewart vs. Travis, et. al. 10 Howard, 153; Liningddle vs. Livingston, 10 John. 36 ; Raymond et. al. vs. Bearnard, 12 John. 274; King vs. Brown, 2 Hill. 485.
    
      Lhird. — Admit that .the Court erred in overruling defendant’s motion for judgment on the pleadings, he cannot take advantage of such error : Because,
    
      The parties and the Court on the trial of the cause as appears both by the evidence and the charge of the Court tried it on the theory that a demand was necessary. The Plaintiff without objection by Defendant proved the demand. The Court at Defendant’s request, instructed the jury that they must find such a demand, before Plaintiff could have a verdict. By consenting to try the fact of demand the Plaintiff waived his objection that it was not pleaded.
    See on this point, Dcmiels et al vs. Smith, decided at the last July (1860) term of this Court; Goit vs. Waples et al 1 Minn. 134.
    H. L. Moss, Counsel for Appellant.
    
      Wu. B. MoGteoege, Counsel for Respondent.
   By the Court

Atwatee, J.

The first error alleged on the part of the Appellant, is the refusal of the Court below to grant a continuance on the affidavit of the Defendant. The affidavit stated that he (Defendant) had stated the facts in this case to H. L. Moss, Esq., his attorney, and that he is advised by his said attorney that he cannot safely proceed to trial without the testimony of August Hageman, who is a material witness in this action. That said TIageman had resided in St. Paul during the past year, and that since the commencement of the Court he had informed the Defendant that he would be ready at any time to attend and be present at the trial of the cause. That on the evening of the 3d of October the Deponent had sent to the residence of Hageman to have him in attendance before the Court, and was informed that within the last ten days he had gone to Memphis, Tennessee, and would be absent three months. The affidavit further stated, that relying upon the promises of the witness he had not subpenaed him, had n.o knowledge of his intention to leave, and expected to be able to procure his testimony at the next term, &c.

The affidavit also stated that one Kittel was also a material witness for the Defendant. That he had been absent from the State since the cause was at issue; that he had been unable to ascertain bis residence or whereabouts, but tbat be was expected to return to tbe State, and tbat Deponent expected to be able to procure bis testimony at tbe next'term of tbe Court. Tbe affidavit did not state wbat was expected to be proved by either witness.

There was no error in tbe refusal to grant a continuance on this affidavit. There was no diligence whatever shown to procure tbe attendance of Hageman. If a party chooses to rely upon tbe promise of a witness to be in attendance, without snb0penaing him, be does so at bis own risk, and cannot, on tbat ground, claim a continuance if tbe witness does not keep bis agreement. (Beaulieu vs. Parsons, 2 Min. 37.) Tbe affidavit is also defective in not showing wherein tbe witnesses were material. Tbe facts which tbe party proposes and expects to prove by tbe witnesses should be set out in tbe affidavit, so tbat tbe Court may judge of tbe materiality of tbe witness. Tbe party himself is not to be the judge of tbe materiality of testimony. If this were so, there are probably few cases in which an adjournment would not be obtained, once at least, and perhaps many times. We are aware of no authorities which sustain a continuance on such an affidavit ^ and if there are any, they are entitled to little weight. Tbe least tbat can be required on this point is, tbat tbe party should state tbat be has stated tbe facts which be expects to prove by bis absent witnesses to bis counsel, and tbat be is advised by bis counsel tbat be cannot safely proceed to trial without tbe testimony of such witnesses. But tbe better and correct practice is as above stated, to set forth tbe facts in tbe affidavit, tbat tbe Court may be advised as to whether tbe testimony is necessary or otherwise.

Tbe Defendant at tbe trial of tbe cause moved for judgment in bis favor on the' pleadings, which motion was denied by the Court. This ruling is now assigned as one ground of error. Tbe action was brought to recover tbe sum of $253.80, due, as alleged in tbe complaint, for painting and painting materials. Tbe Defendant in his answer set up a special contract between himself and Plaintiff, in substance claiming tbat tbe Plaintiff agreed to work for tbe Defendant for tbe price of two dollars per day, and to receive payment therefor at tbe rate of one dollar per day in cash, and tbe balance of one dollar per day was to be applied towards tbe payment of a lot in St. Paul, wbicb tbe Plaintiff then agreed to purchase of Defendant, at tbe price of $350, and that tbe Defendant agreed to pay for tbe same by giving two promissory notes of $175 each, one of wbicb notes was to be paid by Plaintiff in labor at tbe rate of a dollar per day, and tbe other to be paid in five years. That tbe Plaintiff performed bis labor in pursuance of this agreement, and that tbe Defendant was, and had always been, ready to perform on bis part, &c. There were other allegations in tbe answer, wbicb it is unnecessary to state.

Tbe reply denied tbe special agreement set up in tbe answer, but admitted that there was originally a special agreement between himself and Defendant, whereby be agreed to work for tbe Defendant at tbe rate of two dollars per day, one half to be paid in cash and one half to be applied in payment of a lot wbicb tbe Defendant agreed to sell him for tbe sum of $350, and that tbe Defendant agreed to furnish him sufficient labor, on tbe terms above stated, to pay for tbe lot, and denied any agreement to give notes. Tbe Plaintiff alleges compliance with tbe agreement on bis part until tbe Defendant, without just cause, and without any default on tbe part of Plaintiff, discharged him from work, and that tbe Defendant refused to comply with tbe contract on bis part. These seem to be all tbe averments in tbe pleadings necessary to be noticed under tbe objections raised by tbe Appellant.

Tbe Appellant urges that tbe Plaintiff should have brought Ms action upon tbe said agreement to recover damages for an alleged breach, and that be cannot maintain bis action on tbe qucmf/wm meruit for work and labor, unless be shows that tbe agreement has been abandoned and tbe contract rescinded.

Where work is done under a special contract, wbicb has not been abandoned or rescinded by either party, but remains in full force, tbe action must be brought upon it, and tbe Plaintiff cannot recover upon the' common counts. This principle is too well settled to require argument or tbe citation'of authorities.

Tbe Plaintiff, in bis reply, admits that there was a special contract for the work, but alleges that the Defendant, without cause, discharged him from his employment. The Appellant claims that there should have been a demand alleged upon the Defendant to provide work, and a refusal by him to furnish it, and that a mere discharge does not amount to a default, as it might have been for a day or an hour. But we think the allegation sufficient to show a breach of contract on the part of Defendant, and that it throws upon him the burden of justifying it. The Plaintiff was at liberty to regard the contract as abandoned on the part of the Defendant by this act, and to proceed to recover the value of his labor as though no special contract had existed. It was not his duty after the discharge to go to the Defendant and demand work. If he could be required to make the demand once, he might, with the same reason, any number of times, and it would be difficult or impossible to define the limit of the Plaintiff’s duty in this respect. The Defendant was not entitled to judgment on the pleadings, and the Court properly denied the motion.

There is another objection to both the special contracts mentioned in the answer and reply. They were verbal contracts for the conveyance of land, and absolutely void by the statute of frauds. Neither party could take anything under them, and this objection could be raised by either, although the Plaintiff might have fully performed on his part. No demand, or tender of a deed by Plaintiff to Defendant for execution, would have made the Defendant any more liable, as there was not, nor could not be, any legal obligation on him to fulfill the contract. The contract was an entirety, and if void in part, was void in toto. The objection, therefore, that a demand for a deed of the lot by the Plaintiff, and a refusal on the part of the Defendant, was necessary to entitle the Plaintiff' to recover, is not well founded.

It would appear, however, from the testimony and charge of the Court, that the action was tried on the theory that a demand of a deed on the part of the Plaintiff was necessary. And it seems that the Plaintiff testified, (without objection on the part of the Defendant,) that he had made a demand of the Defendant lor a conveyance of the lot in question. And the Defendant asked the Court to charge.the jury, “that if they find tlie work was done by Plaintiff under a parol agreement, to be paid for in a lot of land, that he cannot. recover for Ms work and labor until he has made a demand for the conveyance of the lot, and a refusal to convey.” The Court charged as requested. The Court also further charged substantially to the same effect, though in different terms, precisely as requested by the Defendant. On this ground, therefore, the Defendant has not been prejudiced by the evidence or charge of the Court.

The judgment below is affirmed.  