Lee v. Bates

<p>Appeal from Fayette.</p> <p>In an action upon a note of hand, the defendant pleaded no consideration, and that the note was given in consideration of a certain amount of work, which the payee, the plaintiff, alleged he had performed for Waterman and Rogers, contractors on the Cumberland Road, and of an agreement by the payee to deliver to the defendants an order or transfer, to enable them to draw from W. and R. the pay for the work—W. and R. being contractors upon the Cumberland Road —and that the payee never performed the work, nor delivered the order or transfer, whereby the defendants lost the benefit of the same.</p> <p>The defendants then moved for a continuance of the cause, upon an affidavit of one of the defendants, stating that he believed that he could prove by G., who resided in the county where the suit was commenced, that G. had in his possession the contract for work done by the said plaintiff for W. and R., and that the plaintiff had failed to transfer it to the defendants. That he expected to prove by W. and R., that the plaintiff wholly failed to perform his contract with them, and that they owed him nothing, and that they wholly refused to pay to the said defendants any money on account of the said plaintiff for the said work; and that the affiant knew of no oilier witness by whom he could prove the same facts. That G. was absent from the county when the writ was served upon the defendants, and had not since returned. That Waterman resided in St. Louis, in the State of Missouri, and Rogers in Greene county, in the State of Illinois; and that from the shortness of the time between thé commencement of the suit, and the session of the Court, they had not been able either to procure W.’s deposition, or the attendance of R. as a witness: Held, that the affidavit was sufficient, and the defendants were entitled to a continuance.</p>