PACEY v. McKINNEY, 125 F. 675

MORROW, Circuit Judge (after stating the facts as above). The first two assignments of error relate to the refusal of the court to grant continuances of the cause. The first continuance was asked on the ioth day of December, 1901, when the cause was set for hearing, upon the ground that material and necessary witnesses were absent, whose testimony could not be procured before the following July term of court. An affidavit was filed by the plaintiff in error, stating the facts to which the absent witnesses would testify.

The defendant in error admitted that the witnesses would so testify, and the court then refused the motion for a continuance. The plaintiff in error was not prejudiced by this action of the court. The second or supplementary motion for a continuance was made on the 12th day of December, 1902, and was also based on the absence of material and necessary witnesses, other than those mentioned in the first affidavit on motion for continuance. In the affidavit of the plaintiff in error in support of this supplementary motion, it was stated that G. W.

Dickenson and George Waller “are persons with whom, together with Ira Ranke, the plaintiff herein claims to have made an oral agreement for the sale of the premises” in question; that affiant did not know of the materiality or necessity of the testimony of said witnesses, or either of them, until he was served with plaintiff’s second amended complaint on the preceding day; that as the witnesses resided, respectively, in Seattle and Tacoma, Washington, and as there were no means of communication with them at that season, their testimony could not be obtained.

It was alleged that by said witnesses the affiant expected to prove that neither of said witnesses liad authority to enter into the oral agreement set up in the complaint, on behalf of the plaintiff in error, and that neither of them did make such an agreement with the defendant in error. It was further alleged that the plaintiff in error was unable to prove the facts by any other witnesses. The original complaint had alleged that the agreement for the sale of the premises was between the defendant in error and the agents and representatives of the plaintiff in error.

If the latter did not know who these alleged agents and representatives were, he should have taken proper steps to find out. The complaint had been filed nearly six months when the case was called for trial. The summons was served upon the plaintiff in error .June 24, 1901. At any time after his appearance he might have obtained the deposition of the defendant in error (Code Civ. Proc.

Alaska, § 644 [Act June 6, 1900, c. 786, 31 Stat. 434]), and have ascertained the names of the alleged agents and representatives of the plaintiff in error, and all the facts necessary to prepare for the defense, or he might have demurred to the complaint within the time provided by law, and secured, as he afterwards did, the information contained in the amended complaint, and, so being informed, have secured the evidence of the absent witnesses in time for the trial.

Failing to use due diligence in obtaining information as to the names of the parties alleged in the complaint to be his agents and representatives, he was not entitled to a continuance of the case to obtain their evidence. Moreover, it appears that the testimony of the absent witnesses was merely corroborative of the witness Ranke, who was present and testified, and that of the plaintiff in error, who was a witness in his own behalf. The refusal of a continuance upon this showing, and under the circumstances, does not appear to have been an abuse of .discretion on the part of the court. Cox v. Hart, 145 U.

S. 376, 380, 12 Sup. Ct. 962, 36 L. Ed. 741; Isaacs v. United States, 159 U. S. 487, 489, 16 Sup. Ct. 51, 40 L. Ed. 229. With respect to the objections made to certain portions of the pleadings and the court’s rulings thereon, this court will not reverse a judgment for the mere purpose of striking out some portion of the complaint, or correcting some other technical defect in a pleading, when it is not shown that the substance of the pleading in question would have been materially altered thereby.

It is contended by the plaintiff in error that the second amended complaint does not state facts sufficient to constitute a cause of action, and that the demurrer should have been sustained for the reason, among others, that there is no allegation in the complaint that possession of the premises was ever delivered to the plaintiff in error, or- to his authorized representatives or agents.

It is alleged that there was an agreement to sell the premises described in the complaint to the plaintiff in error, and that he agreed to buy for a specified sum, and that in pursuance of this agreement the "defendants, their agents and representatives, had entered into the possession thereof, and ousted and ejected the plaintiff from said premises.” This would seem to be a sufficiently direct allegation that the possession of the premises was delivered to the plaintiff in error, or to his authorized representative or agent. In any event, the defect of form is cured by

section 75 of the Alaska Code of Civil Procedure (31 Stat. 344), which provides that “pleadings must be liberally construed. In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with the view of substantial justice between the parties.” The action of the court in allowing the memorandum of the oral agreement, alleged by the defendant in error to have been made, to be introduced,in evidence, is assigned as error.

This memorandum was attached to the complaint as an exhibit, and was introduced in evidence during the course of the trial, in connection with the testimony of the defendant in error, as showing the oral agreement which he claimed was made between himself and the agents of the plaintiff in error. The court ruled that the writing might be received in evidence, as one of the circumstances tending to connect the parties in their possession, or change of possession, of the lot in question, and for that purpose only.

It was but a part of the evidence introduced in support of the claim of the defendant in error that an oral agreement existed, and was subject to be disproved in the same manner as the oral testimony of the defendant in error. The court instructed the jury that the writing, never having been signed, was not evidence itself of an agreement, and the jury was correctly instructed as to its legal effect; that it was introduced only as a memorandum tending to show the terms of an oral agreement, but, the writing never having been signed, it was not evidence itself of any contract.

With respect to some of the objections raised by the plaintiff in error to the proceedings in the court below, it is sufficient to say that they are not assigned as error, and they are not sufficiently plain and prejudicial to justify this court in reversing the judgment. The judgment of the District Court is affirmed.