Orleans County monitor. [volume] (Barton, Vt.) 1872-1953, 1898-09-19

Inc JuGg6 IN charging the jury SAID
in part:
Gentlemen of the jury.-There are
two branches of the plant iff's case pre-
sented by their specification, but the
situation is such that it is only neces-
ary to present one branch of the case
to you. For it is conceded on the part
of the defendant that the plaintiff
is entitled to recover the amount Of
rent which he claims to reoecover, SO
! that the verdict will be for the plain
rent. The consequence is that no
defendants verdict will be sent to you
in the sense which you would ordin-
| arily have in mind, for whatever the
verdict is, even if the defendant pre-
walls upon the matter which he is con-
testing here, the plaintiff will never
theless be entitled to a verdict for the
smaller amount. And Of the two YER
diets that you will have, the smaller
verdict will be the defendants verdict
and the larger verdict will be the
plaintiff s. verdict, that's, the plaintiffs
will then be recovering what they
claim to recover, and If you return
plaintiffs verdict for the smaller sum
you will be giving the defendant his
case upon that branch of the case
which they are contesting.
This suit was brought by B. NJ. r.
Nelsonin his lifetime, and is now pros
ecuted by his special administrators
Of his estate. The main purpose of
suit, as already indicated, is to recov-
err the sum of $4,000 which is claimed
to have been loaned him by the de-
ceased in 1891. The defendant admits
the receipt Of the money but says it
was given him by Nelson to induce him
to locate in Barton. So the issue pre-
sented for Y ou to determine is whether
this money was loaned to the defen
dant Or paid him to procure change
of residence. The plaintiffs present a
certain claim which the defendant
meets by the general issue, and the
burden is upon the plaintiff to make
out his case. The burden is upon the
plaintiff to show that this money was
given to the defendant in s1ch a way
and under such circumstances that B.
| M. r. Nelson was entitled to recover
it back. But in a case of this kind,
which is civil case the burden which
rests upon the plaintiff in this case as
already stated, will be satisfied by es-
tablishing it by fair preponderance
of the evidence. It is not necessary
| in case of this character that the
plaintiff make out his claim beyond
reasonable doubt, or to your entire
satisfaction.
If you fail to find that the issue is
sustained by this measure of proof,
then the law gives the case as regards
that issue to the defendant.
Mr.. Young stated that you must
find that the minds of the parties met.
That is entirely true as a general
proposition. At the same time, if Mr..
Nelson's sayings and doings were
such that Davis had light to under
stand and did understand that he was
giving the sum to him to procure his
return from the West, then he would
be entitled to hold the money, because
Mr.. Nelson would be bound by the
fair meaning of what he said and did.
The case differs from the ordinary
in that you are without the evidence
of the parties to the transactions,
death having closed the mouth of Mel
son, and the law closes Davis mouth
except to meet Or explain the testi-
mony Of witnesses produced against
him as to matters occurring after Mel
sons death. But although the par
ties to the understanding, whatever
it was, have not been able to testify
in regard to it, we find some of their
statements concerning the subject
matter in a co rrespondence be-
tween them which has been introd uc-
ed in evidence and which both par
ties rely upon as supporting their re-
spective claims. In regard to the
earlier letters, it will be suffi cient for
present purposes to say that those on
the part of Nelson contained repeated
expressions of his desire to have Davis
return and Of his Willingness to do
something to bring it about, and that
those on the part Of Davis dwelt upon
the advantages of his position at
West Superior and the difficulties Of
breaking up and returning. In reply
under Dec. End, to a letter not pro-
duced. Nelson after referring to their
expected return, says ne does notwant
Davis to do anything to injure him
self financially, and asks him to write
him what he shall expect him to do