delivered the opinion of the Court.
The affidavit for a continuance fails to set up any matter which could not be proved by other witnesses, save the giving by the plaintiff of certain orders upon the defendant; there was no pretense that these had been accepted by or presented to appellant; the testimony would therefore have beén immaterial.
The rules and regulations of appellant did not enter into the contract, and, so far as appears, had nothing to do with this case; the court, therefore, properly refused to admit them in evidence. The certificate of the engineer of the park commissioners was admissible, because by the terms of the contract the work was to be done subject to his inspection, approval or rejection; and it was further provided that if the rate of progress was satisfactory to him, estimates in the usual form would be issued to the contractor for eighty-five per cent of the value of the- work done; the remaining fifteen per cent being reserved until the final completion and acceptance of the work.
Appellee testified that after he completed the work he received from said engineer the final certificate upon which the action was brought.
So, also, the court properly refused to allow appellant to put in evidence the record of the proceedings of the commissioners. The question before the court was not what record the board had made, but whether appellee was entitled to be paid the amount for which a certificate was given him. Whether appellee had completed his contract, was a matter concerning which appellant did introduce evidence; as to this, the finding was against the appellant. The judgment of the Superior Court is affirmed.