Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1895-03-29
WINDHAM COUNTY COURT.
Now in the Third Week of the
Session.

A Disagreement in che Case Bailey VS..
$. A. Smith & CO.---RepOrts of Evil
dence In other Suits.
The case of F. J. Bailey VS.. S. A. Smith
e. Co. was given to the jury last Friday
night. After being out all night the jury
were unable to agree and were discharged.
Following are reports of cases heard during
the past week.
Charles Z. Alexander as. Central Vermont
Railroad COmpdnH-Action TO recover for dam
ages on shipment of apples The evidence of
the plaintiff tended to show that in October and
November, 1892, the plaintiff shipped $40 barrels
of apples from Brattleboro to Sioux Falls, S. D.,
222 barrels from Brattleboro to Yankton, S. D.,
and 2l9 barrels from South Vernon to Yankton.
That the larger portion was good winter fruit the
remainder thereof fall fruit Of a good quality.
That the $40 barrels were loaded in three cars
the barrels laid upon their sides filling each of the
three cars full; that packing the barrels on their
sides was the safest and most improved method
for transporting apples in barrels by railroad.
That the AL barrels shipped to Yankton were
loaded in two cars in the same manner. That
these apples all billed to be shipped the
National Dispatch Fast Freight line from Bratte.
boro and South Vernon to Sioux Falls and Yauk-
ton,,and lecepted for by the agents of said line
stationed at Brattleboro and South Vernon. The
defendants here raised the objection to receiving
any evidence relative TO the shipment of apples
from South Vernon, inasmuch as the plaintiff in
his writ had not declared against them on account
of that shipment. The court held that such evil
dence was not admissible, and hence the South
Vernon shipment was eliminated from the case.
The evidence of the plaintiff further tended to
show that starting from Brattleboro the National
Dispatch Fast Freight line comprised, at that
time, the Connecticut River, Central Vermont,
Grand Trunk and Chicago and Grand Trunk rail.
, roads to Chicago. That from Chicago to Sioux
Falls ana Yankton they were shipped over the
Chicago & Northwestern railroad, but ii di not
appear that said latter railroad company
sociated in any manner with the other roads In
forming the National Dispatch line. That when
the apples arrived at Sioux Falls and Nankton
they came loaded in two cars for each one car in
which they were originally shipped. That some
of the barrels were standing end. some lying
upon their sides and others partly tipped over;
that some 40 or more Of the barrel heads were
broken, others had been opened and reheaded up,
one barrel for NRnktou was missing, a large
quantity of the apples had been lost or stolen in
transit and the remainder We're, to a considerable
extent, bruised so that they required to be sorted
and the injured ones sold at large discount and
some of them only fit to be ground aud pressed
into cider. That plaintiff was damaged to the eX
tent of $500, which he sought to recover in this
suit. 1t further appeared from the receipt or bill
of lading issued to the plaintiff when the apples
were shipped at Brattleboro that it contained a
clause providing that no road constituting the
National Dispatch line should be held responsible
for any loss or damage occurring to property eX
cept such as should happen upon their osvn line or
road Also that notice of any claim for damage
sustained should be made in writ < by the per
son claiming damage within 30 days from date
of delivery at the end of the route The evidence
I
within 30 Gays make such claim in writing to
! the agent at Chicago within the 30 days for loss
upon the apples shipped to Sioux Falls, but not
| for those shipped to Nankton. That at that time
he made a claim for $50 and other damages sus-
I tanned.
The court here ruled that the above mentioned
provisions. printed into the bill of ladng a
| part of the contract for the shipment of the ap-
| Piles by which the parties were bound. That fail
ing to give the required notice, the plaintiff was
not entitled to recover in any event, damages on
| account of the shipment to Nankton. The de-
PENDANTS counsel then asked that a verdict be di-
| rected for the defendants, for the reason that
| they had failed to show that the damages com
planned of happened on defendants road extend
| ing FRONT Windsor to st. Johns, Canada. Plain
| tiff S counsel insisted that nasmuch as they had
| shown the delivery OF the apples in good condi
ton to the railroad at Brattleboro and their dam
aged condition on their ARRIVAL at Sioux Falls,
| the burden wasi thrown on defendants to show
/ that the damage did not occur their road, and
that they had the right to to the jury upon the
| question. The court said that, for the purposes
of this trial, he would hold with the plauitiff,
| whereupon the defendants introduced some six or
| seven OF its freight conductors who gave evidence
tending to show that the cars in which the apples
| were shipped were received at Windsor from the
Connecticut River Railroad company in good con
diton with both doors of the cars sealed, and in
| the same condition delivered to the Grand Trunk
road at st. Johus. The case was then argued by
| counsel and submitted by the court to the jury.
Among other things the court told the jury that
to entitle the plaintiff to recover they must be
reasonably satisfied that the damage complained
| of did not happen between Windsor and st. Johns
And this they must find from a consideration of
all the evidence in the case. The jury were ont
all night and being unable to agree, the court di-
rected a verdict for defendant.
Waterman, Martin & Hit for the plaintiff.
Writer'S and Prouty for the defendant.
Geo A. Doirns and lcife u.s. Patrick Connern
Action for deceit in the sale of COW. The evi
dence of the plaintiffs tended to show that Oct. g
1898, they purchased COW of the defendant al
agreed price of $50. That as one of the induce
ments to said purchase the defendant warranted
said COW to be sound and right IN every respect
That said'cow taken to their stable on the Goth
and soon thereafter they discovered that said COW
urinated in small quantities, that it had an Of
fensye odor and was more or less affusion Of
blood or bloody mucous therein. The COW had
but recently dropped its calf and plaintiff,
thought her condition was due to the fact thai
some portions of the placenta had been retained
That the COW continued in this co ndition for
WHILE growing worse until it died April TO- 1894
That post norton made by veterinary surgeon
revealed the fact that the kidneys of the COW wer
badly diseased and that said disease was of Ions
standing-a year or eighteen months. The plain
tiffs had expended Slh in trying TO cure the COW
that $40 was a fair sum to recompense them 70
caring for the COW, and expense of keeping wa
~ cents per day.
The evidence of the defendant tended to sho,
that he did not warrant the COW upon the sale
represent her to be sound, but that he told tn
plaintiff, Geo A. Downs, several days before tn
trade that the COW was all right for anything h
knew. That he had owned the COW about thre
years and he had no knowledge whatever that
was diseased. That it was a good looking COW
good for milk and butter; That the COW appal
Haskins and Stoddard for plaintiffs, $500
| Davenport, Waterman Martin and Hit for d
PENDANT.
Samuel Tidd as. Il F. Waite and Fred }
| Waite. Action to recover balance of S545 fo
r | work and labor. The evidence of the plainti
. | tended to show that he was hired by the defen,
ant, Fred NJ. Waite, who was engaged in the bus
ness of teaming and numbering That he con
menced work about June IL, 1898 and lahore
more or less of the time until Sept. l. 1894 Thu
when the said Fred NJ. hadn't work for him to {
he worked upon the farm OF the defendant A.
I Waite. That said Fred NJ was agent of A. r.
r these transactions, or copartner The plainti
|. contended to hold both defendants responsible
= or said A F. as principal debtor. That Fred
was insolvent but defendant A. F. was solvent.
The defendants evidence tended TO show thu
s said A f. had nothing to do with the hiring
q plaintiff; that Fred NJ. was never the agent of
a + nor were they ever partners. That by an a
rangement between defendants said A. +. boar
ed large number of the employees of Fred
and kept some of his teams. That when Fred
J. did not have work for his men hdGpermitted the
;. to work for A. f. on his farm to pay him for thu
e board, etc. That when they worked on said far
they were the employees of Fred NJ. and work.
to pay A. +. for boarding his men and team
e That A. +. never contracted with any of tho
n men or became responsible for their labor,
lie Fits for the pla intiff
Waterman, Martin & Hit for defendants.