#### Thomas A. Foley, surviving partner, etc., v. A. C. Kane.

I, Continuance—when overruling motion for, cannot he assigned as error. Where neither the motion nor the affidavit filed in support of a motion for continuance are contained in the bill of exceptions, and where it does not appear from such bill of exceptions that any exception to the ruling of the court was taken, error cannot be assigned upon the overruling of the motion for continuance.

Action of assumpsit. Appeal .from the Circuit Court of Edgar County; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1903.

Affirmed.

Opinion filed March 16, 1904.

Rehearing denied May 37, 1904.

A. T. Tragdon and J. W. Shepherd, for appellant.

J. H. Howell and J. E. Dyas, for appellee.

Mr. Justice Puterbaugh

delivered thé opinion of the court.

This is an action in assumpsit, under the common counts, brought by appellee, a woodworker, against appellant, a carriage maker, to recover for work and labor by him performed. The plaintiff recovered a judgment in the trial court for $193.05, from which the defendant appeals.

Appellant contends that the verdict of the jury is contrary to the evidence. The only controverted question of *545fact involved in the case, is as to whether or not there was an express contract between the parties as to the amount of wages to be paid, appellee contending that he was to receive twenty cents per hour, while appellant insists that no agreement as to wages was made. The evidence tends to prove, and the jury were warranted in finding that the work performed by appellee was fairly and reasonably worth the sum of twenty cents per hour or $2 per day. We therefore regard the .question as immaterial. It is not denied that appellee worked 3,988 hours. At the rate of twenty cents per hour he therefore earned $797.60, upon account of which he was paid, as claimed by appellant, the sum of $604.55. The balance due is the exact amount of the verdict and judgment.

Appellant further contends that the court erred in overruling his motion for a continuance. ¡Neither the motion nor the affidavit filed in support of the same are contained in the bill of exceptions, nor does it appear therefrom that any exception to the ruling of the court was taken. It therefore cannot be assigned as error. Pick v. Ketchum, 73 Ill. 366.

Several other reasons are assigned for a reversal, but as they are not argued by appellant in his brief and argument, we will not refer to them in detail. We have,however, considered them and find that no substantial error wTas committed prejudicial to appellant.

The judgment will therefore be affirmed.

Affirmed.