The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-10-19

burden Is upon the defendant TO prove by pre-
ponderance of the evidence that the making
and acceptance of the draft sued upon in this
case was given without consideration. and I'M
less the defendant has done this the jury should
A preponderance of the evidence means the
greatest weight OF all the evidence. When you
consider all the evidence In this case and find
that greater weight OF such evidence sustains
certain fact or state OF facts, then
such facts would be established by
a preponderance OF the evidence.
The jury are instructed that the preponder-
ance OF evidence in case is not alone deter
mined by the number OF witnesses testfying to
particular fact or state OF facts. In determin-
Ing upon which side the preponderance OF evil
denee is the jury should take into consideration
the opportunities of the several witnesses Tor
seeing or knowing the things about whicA they
testify; their conduct and demeanor while testi-
flying: their interest lack OF interest If any, in
tie result of the suit the probability or improb-
ability OF the truth of their several statements,
In view Of all the othe- evidence, facts aud cir
cumstances proved on the trial; and from all
these circumstances determine upon which side
Is the weight or preponderance OF the evil
dence.
Although the Jury should find from the evil
dence that the engineers OF the Seattle d North
cru Railroad Company furnished the estimates
to the plaintiffs upon which the drait sued
upon was given, vet If the jury should find from
preponderance of the evidence that such esti-
mates were incorrect, either by mistake or de-
sign, then the plaintiff. woula have no right TO
recover more than is justly due under the con-
tract. And III you should find that snch estl-
mates were incorrect and the plalntins Knew
that fact, and knowing such estimates 10 De In
correct asked for and accepted a draft LOT an
amount III excess oil what they knew 10 De Que
them on account of amy over-estimates or STATE
ments or work not done, then under sucn cir-
cumstances, if you found, the plaintiffs
would be guilty of fraud in asking for ana ae-
eepting any draft for any such excess.
1t is claimed by the plaintiff in this case that
the plaintiffs and the aeaeudant on the 18TH DAY
OF september $780, mutually made stated &C
count, whereby the defendant admitted that the
plaintiffs were entitled TO receive the sum OIL
S10,l75, and for that sum draft was given,
when draft was described in the complaint L
instruct y u that if you should fud from tne
evidence that such stated account was mace
between the parties, such account would De
only prima facie evidence OF its correctness ana
l instruct you further that If you believe from
preponderance OF he evidence that there was
either fraud, mistake error in the statement
of such an account, then in such case defendant
would not be estopped from disputing Its cor
rectness. and is at liberty to impeacn the same
for such fraud or mistake or error.
If you believe from the ev1dencethat the ofaIt
In question in this case was gwen and accepted
without consideration, then your verdict must
IL is claimed by the defendant in this case that
the draft in question was given and accepted py
the Oregon Improvement COMPANY as an accom-
mediation for the seattle IL Northern Railway
Company, and it is further claimed that the Ore
gon Improvement Company was induced to ana
did accept this draft because OF fraudulent rep
reservations made by the plaintiffs TO the ore
gon Improvement Company and to the seattle "
Northern Railway Company, that the seattle q
Northei n Railway Company was indebted to the
plaintiffs in sum greater than the amount OF
this draft, when in truth and in fact no such
Indebtedness existed. instruct you that If you
believe from the evidence that the draft In ques-
ton was so given and that in truth and IN fact
no such consideration existed for the giving or
the same, your verdict must be for the de-
PENDANT
Ii YOU believe from the evidence that at the
time of the giving of the draft in question the
Seattle d. Northern Railway Company was not
indebted to the plaintiffs in any sum whatever,
then your verdict must be Tor the defendant,
and instruct you further that IL you should
find from the evidence that the Seattle d North
ern Railway Company was at the time this draft
was given, indebted TO the plaintiffs, but that
the Indebtedness was in less sum than the
amount of the draft, and you should further
find from the evidence that the defendant was
induced to give the draft by reason OF fraud
practiced by the plaintiffs, or through mistake
or error, then your verdict in this case, II for
the plaintiffs, should be only for the amount
actually due from the Seattle & Northern Kali
way Company to the plaintiffs.
Instruct you that while it is true that under
the contract set up in the answer in this case
the chief engineer OF the Seattle Northern
Railway Company had the right to direct the
manner in which the work under the contract
should be done, provided such direction was
within the apparent scope and intention OF the
contract that such engineer had no power
authority, against the interest OF the said Sc
attic 4 Northern Railway Company, TO allow
the plaintiffs credit for the work which had
never actually been performed, and If you be-
lieye from the evidence that as a matter of fact
the amount for which the draft was given was
not actually done, and If you believe further
that the defendant was induced TO give said
draft by reason of the fraudulent representa-
tons OF the plaintiff, or by mistake or error in
the adjustment or settlement OF the account of
the plaintiffs, then the fact, If fact it be, that
the chief engineer OF the Seattle & Northern
Railway Company allowed the plaintiffs credit
tor work which had never been done by
them will not stop the defendant in this case
from disputing the accuracy OF the plaintiffs,
count in regard to the work last referred to.
Ii YOU believe from the evidence that the de-
PENDANT was induced to execute the draft in
question by the representations OF the plaintiffs
that there was due from the Seattle d Northern
Railway Company to the plaintiffs the amount
of the draft and if you believe further from the
evidence that such representations were false
and fraudulent and made by the plaintiffs with
intent to defraud the defendant and that in fact
there was nothing due plaintiffs, then instruct
you that the draft would be considered in law
rs having been made and accepted without con-
sideration and your verdict must be for the de-
fendant.
The plaintiffs in this case claim that the
draft upon which this action was brought was
one OF a series OF drafts given In pursuance OF
the settlement OF a stated account had between
the plaintiffs and the defendant. The defendant
claiins that through fraudulent representations
OF the plaintiffs there was fraud and error in the
statement of this account in this, that the plain
tiffs represented that the grading upon the rail-
road mentioned in this contract set up in the
answer in this case had been fully and COM
plelely doue in accordance with the said con-
tract and the sp 'cihcations which were made
part of 1t, when in fact large quantity of logs
and perishable material had ben placed or al
lowed to remain by the plaintiffs in the en-
bankment which constituted the grading and
that the plaintiffs through such representations
received credit for the full amount OF the cubic
contents OF the said embankment, as though the
same had actually been completely constructed
of earth, when in fact portion thereof con-
sisted of logs, brush and stumps. instruct you
that If you fnd from preponderance of the
evidence such claims OF the defendant TO De
true, then il Will be your duty to deduct from
the amount OF the draft the amount OF such
logs, brush and stumps, estimating the same at
the same price per cubic yard which is provided
in the contract for earth, that is % cents
The defen liant further claims that through
the fraudulent representations OF the plaintiffs
they received credit in such stated account for
a large amount OF grubbing which was never
performed by them. instruct you that if you
believe from the prepOnderance of the evil
denee such claim OF the defendant 10 be
true, 1t will be your duty 10 deduct
from the amount OF the draft sued on in this
case the value of such gruooing at the price
fixed in the contract, that is, SIS per station.
Toe defendant claims further that through the
fraudulent representations of the plaintiffs they
received credit in such stated account for
large number OF cubic yards OF earthwork which
WIS never done by them. instruct Won tnat if
YOU believe from prepoudereuce of the evil
dence that this claim OF the defendant is true il
VIII be your duty to deduct from the amount OF
the draft sued on in this case the amount OF
such earthwork at the price fixed in the contract
for the same, that is 70 cents per cubic ward;
AMI instruct you further in this regard that if
from the evidence in this ease you shoulo find
that the attendant is entitled to any or all of
the deductions referred 10 IN this Instruction
and You rIher find from the evidence and
under these instructions that the total of such
deductions exceed the amount OF the draft sue0
on, IL will be your duty to return verdict for
the defendant; and II, on the other hand the
deductions ap