, 1888-12-12
THE LEGAL POINTS.
Judge Maginnis' Charge to the Jury
in the Dole VS.. Hecht Case.
How the Twelve Men are to Regard
the Law and Evidence.
The Case Will be Given to the Weary
Jury This Morning.

The taking of testimony in the "bocl
count" cattle case OF Dole VS.. Hecht wal
concluded yesterday afternoon. The
closing arguments will be made this morn
ing, after which the case will 60 to the
jury. Following is the text of Judge
Magionis' charge to the jury:
This is an action in which plaintiff sues
defendant for $44, 765. which sum he
alleges he wa damaged by reason Of false
representations made to him by the de-
PENDANT, which representations induced
him to enter into a contract for the pur.
chase of certain cattle from the defendant.
The burden is on the plaintiff to prove
each of the material allegations of his
petition. The material elements of his
case are:
l. That the defendant Hecht made
Misrepresentation Of existing material
facts.
2. That such representations were
false.
3. That defendant Hecht either knew
that they were untrue or had no reason to
believe them to be true, or recklessly
stated as true matters of which he had no
knowledge.
4. That he made such representations
with the intent that they should be acted
upon.
5. That the plaintiff in his purchase of
the cattle relied and acted upon them and
was misled by them.
6. That such action upon his part re-
suited in damage to him.
Each of these must be proven to you
by the plaintiff by a preponderauce of
evidence. Any matter asserted by the
plaintiff and denied by the defendant can
only be proven in law by a preponderance
of the evidence. If you find that the
evidence bearing upon the plaintiff case
is evenly balanced by the evidence offered
by the defendant, this is not sufficient
and the plaintiff can not recover.
You will notice that l have said the
representations must have been of exist
ing material facts. The representations
must relate to alleged facts or to the con-
dition of things as then existant. 1t is
not every Misrepresentation, relating to
the subject matter of the contract which
will enable the aggrieved party to sue for
false representations. 1t must be as a
matter of fact, substantially affecting his
interests, not as to matters of opinion.
Judgment, probability of expectation, =
= y. If thel representations were
of such a nature that they will bear either
the Interpretation that they were intended
as a mere expression of opinion. or as a
statement OF facts, the question of actual
intention must be decided by the jury
3 Sutherland on Damages, 5S5
The representations must be of a ma
terial fact and such representation is
material when but for it or them the CON
tract would not have been closed-Grimes
VS.. Sanders, 90 u. S. SIS.
The plaintiff is not restricted in his right
to recover to proving all the representa-
tons alleged in the petition. If he has
proved any one of them and it constitutes
such a representation as | have defined,
and the other facts exist, then he may re-
cover. Nor is he required to prove the
representation in exactly the words charged
in the petition. 1t is sufficient if the
words used, taken in connection with the
surrounding circumstances, would sub
stantially amount to the representation OF
the character charged.
Plaintiff must also show hat he has
been damaged by the representations
charged. In case he has proven these
things, then you will ascertain and assess
his damages. The measure Of damages
in this case is the difference in value be.
tween the cattle actually received by the
plaintiff and the number he would have
received had the representations been
true.
AruuItted.