The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-10-19
AN ACCEPTED DRAFT.
Judge Osborn's Charge in the
20. |. Contract Case.
QUESTION OF FRAUD ENTERED.
Law OF Contracts as Set Forth by the
Court-Lack of Consideration
Opinion I'm Full.

teresting points in the law OF contracts. The
charge, which was a very full, comprehensive
one, was given in part at the request of the
Plaintiffs, in part at the request OF the defend
ant and the remainder as the result of the
courts own views OF the case The charge in
fnll was as follows:
charge you, gentlemen, that the plaintiff is
suing here upon an accepted draft for the
amount OF $iol75, with interest at 10 per cent.
from maturity. This draft as il admitted by
the defendant, has been accepted by the Oregon
improvement Company aud they are being here
sued on the acceptance of the said draft. The
Plaintiffs allege that there had been mutual
dealings between themselves and the defendant
and mutual accounts, and that these mutual
accounts were at a certain time stated settled,
credits and debts being added to and struck off
las are the circumstances In accounts balancedl
ana that upon such accounts stated al the
facts surrounding the said accounts were made
known in eyerywtse in every respect to the de-
teniant, the Oregon Improvement Company,
aud that they had such knowledge OF all the
facts aud figures and all the facts surrounding
the Transaction; that with such knowledge they
then settled the said account between them and
there was a balance due the plaintiffs, from
which balance the sum in the draft sued on was
found to be due them and was 80 given them by
the said defendant as such evidence OF
such Indebtedness and to be payment
when the same was duly honored. The defer-
dant admits the execution OF the draft, the pres
entation and the failure of payment; denies
that it the result of stated account in
Which all the facts aud circumstances were
sideration and fraud on the part OF the plain
tiffs, alleging that the plaintiffs procured drafts
ana credits Tor more work in quantity than
they did and that plaintiffs had made false
representations to secure the said credit, and
the said defendant claims that the said over
charges that they claim the plaintiffs obtained,
FOR whatever amounts they are, prevent in this
case any recovery by the plaintiffs, il such be
true.
charge you that "when two persons, corpor-
atoms or individuals. have had money transac-
account
balance appearing 10 be due from one oil tn m,
this Is called an account stated. Ii is of import
ance from the fact that IL operates as an admis-
sion of liability from the person against whom
the balance appears; or, in the language OF the
law, the law implies that he against whom a
balance appears has engaged to pay 1t to the
other and charge you that on this implied
promise or admis sion an action may be brought
for the said balance, and where there IS no
fraud or mistake, and there is full assent to the
said balance by the person against whom 1t Is,
1t becomes then incumbent upon such person
not only TO pay the balance so found, but If
they attempt to avoid the payment it becomes
incumbent upon them in law TO show why they
so avoid it and to prove by a preponderance of
the evidence the existence either OF mistake or
fraud which they did not know at the time the
said settlement or stated account was made.
charge you that ii there was such stated ac'
count, as herein expressed, between the plain
tiffs ard the defendant, and the defendant, with
knowledge of all the circumstances connected
with the whole transaction, and of the said ac-
counts without any fraud or wrong perpetrated
deliver the said draft herein sued on, then in
law the said draft purports consideration, and it
became then and there the promise of the said
defendant to pay the amount of the said draft;
and If the said defendant has not satisfied you,
by preponderance of the evidence, that there
was a fraud or mistake existing at the time of
the said statement OF account, which facts it
did not know, and has not provon by pre-
ponderance OF the evidence, that there was no
consideration for the said draft any part
thereof, you must find a verdict for the plain
tiffs.
charge you further that corporation acts
through agents. Its agents may be its under
servants or its officers, depending upon circum-
stances. Therefore, l charge you that If the
Oregon Improvement Company or the Seattle &
Northern Railway Company, through their
proper agents, acting within the scope of their
authority, render accounts of work and labor
done by plaintiffs, which accounts were with
out fraud or mistake, then / charge you these
accounts became a due and proper subject and
basis upon viii oh n settlement could be arrived
at between the parties in this suit.
charge you in regard to this settlement, or
in regard TO these accounts, that ii these ac-
counts were right, that is, if they returned duly
the truth, and ii a settlement was made with
the said defendant, If such was made, and such
settlement only meets balance that was actu-
ally due plaintiffs, and that there was a charge
for corduroS or for anything else made in de-
PENDANTS behalf which they did not receive and
which they were not In fact given any credit
for, and which they did not in fact make any
claim for, then il is wholly lmmaterial if in
fact there was no actual change in the accounts
between said parties, as FAR as plaintiffs right
OF recovery is concerned, that such charge or
or account was wrong in the name of corduroy
used for the purpose OF balancing books, if il is
SO or for any other purpose to the accommoda-
ton of the defendant or OF the plaintiffs. II
the matter was a mere matter of form, ii you
find il was mere matter or form-in other
words, charge you that If il be true, as claimed
by the plaintiffs, that the extra charge of cor
duroy was merely made with view OF balanc-
ing accounts and arranging books and not for
the purpose OF giving the plaintiffs any false
credit and that the plaintiffs did not in fact re-
ceive any extra credit from such charge, then l
charge you that If no benefit accrued to the
plaintiffs by such transaction or charge. and If
il is true as claimed that the plaintiffs derived
no benefit from any such, and if it is true as
claimed that they had no control or supervision
one way or the other over this book ARA uge-
ment, then charge you that it is wholly i'm
material and can in no wise affect their right to
recover what is actually and justly due them.
l charge you further that, as admitted in the
pleadings, the plaintiffs III this case were under
no contract to ballast the part OF the road under
consideration | charge you further that the
contract in this case calls for the plaintiffs to do
the work according TO the specifications the
said work to be done to the satisfaction of the
defendants engineers Therefore, charge you
that wherever the said engineers in charge of
the said work, or the engineers of the Seattle &
Northern Railway Company, acting for them,
and acting within the scope OF their authority,
gave any orders or had any directions followed
by the plaintiffs herein in the construction or
building OF the said road which orders or direc-
tons were necessary in order that the work be
done to their satisfaction, in accordance with
the contract anu specifications. and you find
that acting within the scope of their authority
in every wise, they gave such orders, then l
charge you that the company is liable, and in
law responsible for such work.
/ charge you further that wherever the nature
OF the work done on the road, or whatever the
changes may have been, ii any, for the c)m-
panv to-wit, the Seattle & Northern Railway
Company or the Oregon Improvement Company,
its agent, acting within the scope of its author
ity, ii all the facts surrounding the nstruction
OF the said road, its material aud quality were
known. aud knowing the same in every wise,
made due offsets and balances, with full knowl-
edge OF the same. and then with full knowledge
of the said road its construction, its manner of
work, its quality and OF all the facts OF whatso-
ever nature or kind, and with such
knowledge the said company, the said
Seattle & Northern Railway Company, through
its duly qualified offlc rs. did accept and take
the said road: and If You find that the said road
was so accepted and had been done to the salts
faction of the engineers, then | charge you that
the construction of the said road If according
to the contract and specifications and If accord
ing TO the satisfaction OF the engineers, and all
the facts Of Its construction Snd acceptance were
in every wise duly known TO the company at the
time OF the settlement stated account, If there
was such, aud there was no fraud or mistake
and there were no facts that II did not know
surrounding the same. then charge you That
the Seattle & Northern Railway Company
would in every wise be liable, aud the defendant
herein, as its representative in this case, would
be liable Tor the full amount of the draft II the
said draft was so given for the said full amount
as hereinhefore stated, and given in cousiGefa-
ton and with full knowledge OF all the facts and
surroundings OF the construction OF the said
road ana all the facts surrounding the same
| charge Won further that the account rem
dered by the seattle & Northern engineers, act
ing within the scope OF their authority, waer-
ever they were so acting. are to be considered
by you, ana II these accounts be true and upon
these accounts q settlement wa had with the
plaintiffs, then I charge you that these accounts
are before you in evidence: they are matters for
~4n-.g.