Opinion of the Court-Lewis, J.

portion of the evidence of the case, and not agreed to by the adverse party, shall be settled by the judge upon notice." There is no evidence in the record before us that the statement prepared to be used on motion for new trial was ever agreed to by the adverse party, or settled by the judge. Nor can we determine from the record, whether the court below acted upon or considered the statement in overruling the motion. The statement not being agreed to or settled by the judge as the law requires, and there being no statement on appeal, this court is limited in its review to those errors, if there be any, which may appear on the judgmentroll. To extend our inquiries beyond that, and to pass upon questions not raised upon the judgment-roll, would be a clear violation of the section of the practice act above referred to. If, therefore, the pleadings are sufficient, and the decree is not inconsistent with them, and is supported by the findings, it must be affirmed.

The bill is filed for the purpose of obtaining a decree of foreclosure of a mortgage executed by the defendant to the assignor of the plaintiff. No question is made as to its sufficiency, and we are fully satisfied that it contains all the necessary allegations. The defendant's answer admits the execution and delivery of the note and mortgage, but denies that they were ever assigned to the plaintiff, or that he is the owner or holder thereof, or that he is indebted to the plaintiff therefor in the sum claimed in the complaint, or any other sum whatever. Then follows a detailed statement of the manner in which the plaintiff obtained possession of the note and mortgage sued on, the substance of which is that he was employed by the defendant to pay the note and to have the mortgage canceled; that after making such payment, the note and mortgage were delivered to him, but that instead of delivering them to the defendant, he claims to be the owner, and brings suit upon them.

The findings of the judge below, however, exhibit [*140] a case *differing very materially from that presented by the answer. By his findings of fact, which are as follows, we must be governed in the disposition of this appeal: First. "That the defendant made, executed and de

Opinion of the Court-Lewis, J.

livered the note and mortgage set forth and described in the complaint; that the same, at the time of the trial of this action, was unpaid, with the exception of the sum of five dollars paid thereon by the said defendant to plaintiff; that said mortgage is and constitutes a valid and existing lieu upon the real property described in said lien." Second. "That the said note was indorsed by the payee thereof, and sold and delivered with the mortgage to the plaintiff, who is now the owner and holder thereof, and the sum of two hundred and thirty dollars is due thereon from the defendant." The substance of the third finding is, that the defendant. requested the plaintiff to purchase the note and mortgage in question, and agreed with him that if he would do so, he, defendant, would make, execute and deliver to him a new note and a mortgage upon the premises covered by the old mortgage; and further promised to pay to the plaintiff interest on the sum of money so paid out by him at the rate of three per cent. per month. That after plaintiff had purchased the note and mortgage, and received an assignment thereof, the defendant refused and has ever since refused to execute and deliver to the plaintiff the new note and mortgage as agreed upon, and that the defendant has not paid, and that he refuses to pay the sum of money expended in the purchase of the note and mortgage upon which this suit is brought; that the defendant is indebted to the plaintiff on the note and mortgage set out in the complaint in the sum of $230, with interest thereon at the rate of three per cent. "per month since the twenty-sixth day of September, A. D. 1865.

Whether these findings of fact are supported by the evidence, is a question which cannot be determined upon in this appeal; they are not inconsistent with the issues raised by the pleadings, and are fully sufficient to sustain the decree of foreclosure and sale which was rendered upon them.

The court finds the execution and delivery of the note and mortgage to Kingsbury, the purchase of the same by the plaintiff, and a *regular assignment of [*141] them to him; that the plaintiff is the owner and

Points decided.

holder of them, and that there is due to him upon the same the sum of $230, with interest.

These were all the facts necessary to support a decree in favor of the plaintiff. As there appears to be no error in the judgment-roll which will authorize a reversal, the decree must be affirmed.

JOHNSON, J., did not participate in this decision.

JOSEPH O'NEIL, RESPONDENT, . NEW YORK AND SILVER PEAK MINING COMPANY, APPELLANT.

[3 NEVADA, 141.]

CONTINUANCE-ADMISSIONS OF OPPOSITE PARTY.-When an application is made for a continuance on the ground of the absence of a witness, it is certainly in the discretion, if it is not the absolute duty of the court under our statute, to deny the application when the party opposing the motion will admit that the witness, if present, would swear to the facts as set out by the party applying for the continuance. CONTRACT FOR MANUFACTURE OF BRICK NEED NOT BE IN WRITING.—When A. contracts to make a certain number of bricks for B., and deliver them to him at a certain price, B. to select the spot where, and the clay out of which the bricks are to be manufactured; this is a contract rather for the manufacture than sale of brick, and does not come within the 62d section of the act in relation to conveyances, etc., requiring contracts for the sale of goods to be delivered in future to be in writing. IDEM-IMPLIED WARRANTY.-Usually there is an implied warranty that an article manufactured for a certain purpose is fit for the use intended. But if the manufacturer is controlled as to the manner of construction and the material used by the person ordering the article, he is only bound for skill and diligence--he is not responsible for the result. ATTACHMENT-SUFFICIENCY OF AFFIDAVIT.-Where an affidavit was made on the fifth of October, stating the necessary facts to justify the issuance of an attachment, but was not filed until the sixteenth, on which day the attachment was issued: Held, this was sufficient to justify the is suance of the writ. Lewis, J., dissenting.

1 STATUTES OF DOUBTFUL MEANING-HOW CONSTRUED.—In cases of doubtful construction of statutes, the courts will look to the effect to be produced by one or the other construction, and give a statute such effect as will be most beneficial.

[*142]

*APPEAL from the District Court of the Eighth Judicial District, Hon. S. H. CHASE, presiding.

(1) 2 Nev. 371; 11 Nev. 117.

Opinion of the Court-Beatty, C. J.

The facts are stated in the opinion.

W. M. Seawell, for Appellant.

J. H. Hardy, W. T. Gough and Boring & Brown, for Respondents:

The order of the court refusing to dissolve the attachment is not an appealable order, nor can it be reviewed on appeal from the final judgment, because it does not affect the merits of the case. (Allender v. Fritts, 24 Cal. 447.) The authorities make a marked distinction between contracts for the mere sale and delivery of goods, and contracts involving the expenditure of skill and labor in making articles which are the subject of contract. (Eichelberger v. McCauley, 5 Harr. & Johns. 213; Bronson v. Wiman, 10 Barb. 406; Downs v. Ross, 23 Wend. 270; Sewall v. Fitch, 8 Cow. 215; Robertson v. Vaughan, 5 Sand. 1; 1 Chit. on Contr. 411.)

*By the Court, BEATTY, C. J.:

[*143]

The plaintiff in this case, brought suit against the defendant, a corporation, for the price of certain brick alleged to have been manufactured under the provisions of a special contract with the defendant. At the time of bring ing suit the plaintiff also sued out an attachment against the defendant's property. The suit was commenced, and the attachment sued out on the sixteenth of October, 1866, but the affidavit of indebtedness, etc., had been made on the fifth of October, some eleven days before the suit was brought.

The answer of defendant denies having entered into the alleged contract, and on the trial defendant also relied on the 62d section of "An act in regard to conveyances, etc.," which provides that certain contracts for the sale of chattels shall be void, unless a note or memorandum of such contract shall be made in writing, etc. *The de- [*144] fendant moved to quash the attachment, because it was irregularly issued on affidavit made some eleven days before the suit was commenced. This motion was over

Open. 1 of the Court-Leatty, C. J.

tel. The case was subsequently tried, and plaintiff had gent. The defendant moved for a new trial, and fail

*

that motion, appealed to this court from the order overing both motions, at 1 from the judgment.

When the cause was called for trial, the defendant's attorney submitted an af lavit showing the absence of a material witness all what Le expected to prove by said witness. The affidavit was sufficient, so far as regards diligence, materiality, and the likelihood of the witness being present within thirty days, the time for which a continuance was asked. The plaintiff consented to admit that the absent witness would swear to the facts stated in the affidavit for continuance. Upon this admission the court refused a continuance, to which ruling defendant excepted.

We think, under the statute, the court certainly had the discretion, if it was not an absolute duty, to deny the continuance under this state of facts.

The next point made by defendant is, that the court refused to strike out a part of plaintiff's testimony, in which he states the contents of a certain written order (the order itself not being produced) given by the managing agent of the corporation to him.

There is no foundation for this exception. The testimony of plaintiff is, that the agent offered to give him an order of a certain character; that he took it and passed it to a certain party. He did not attempt to state the contents of the order. It could not be inferred from the evidence that he ever read the order. But the order was of no consequence, and whatever its contents, it did not affect the case in any way.

The evidence of W. A. B. Cobb was confirmatory of that of the plaintiff, and contradictory of that of Catherwood, a witness for defendant, and therefore was properly received by the court.

The contract, as alleged and proved, was not a contract for the sale of brick, but a contract for the manufacture of brick for the defendant at a place and out of clay selected by defendant's agent. This case does not come [*145] within the provisions of the sixty-second section *of