Biederbach v. Charles

MOORE, P. J.

August 8, 1946, appellant ordered 2,000 metal cabinets from respondents at the agreed price of $1.79 per cabinet. Subsequently, respondents were directed to deliver the cabinets to one Kluge and to collect $1.97 and remit the 18 cents differential to appellant. Nine hundred sixty-five cabinets were delivered to Kluge pursuant to appellant’s instructions. The balance of the 2,000 cabinets were ready for delivery November 20, 1946, of which fact appellant was at that time notified. After their unsuccessful attempts to collect the accounts from Kluge, respondents demanded payment of the balance by appellant. About the time of the completion of the entire order by respondents, they fabricated goods on a second order for Kluge at an agreed price of $721.45. At

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that time they received $1,500 from Kluge. They applied $721.45 upon the second order and the balance to the account of appellant. March, 1947, the undelivered cabinets were tendered to appellant and demand for the unpaid portion of the purchase price was made. Following a trial, judgment was awarded respondents in the sum of $2,601.45, whence comes this appeal.

Appellant assigns as error the court’s denial of his motion for a continuance and his contemporaneous motions for leave to take the deposition of Kluge on the ground that the latter was out of the state and that appellant had been unable to locate him until two weeks prior to the trial. He based the latter application upon the claim that Kluge’s testimony was the only available evidence of dealings between respondents and Kluge and that the latter would have established that respondents failed to supply the cabinets within a reasonable time. There was no error in the court’s rulings. The testimony of Kluge could have created no more than a conflict in the evidence. Substantial proof was received to the effect that respondents had supplied the cabinets more rapidly than Kluge could store them. Also, there was apparently no time specified in the original order for the delivery and there was no showing that the cabinets were not completed within a reasonable time. Respondent Jack Sale testified that he dealt directly with Kluge. Therefore, since the evidence would be merely cumulative there was no probability that Kluge’s testimony would change the result of the trial.

Moreover, an order denying a motion for a continuance rests largely in the discretion of the trial court. It will not be ground for reversal in the absence of a clear showing of an abuse of discretion.