The Eureka sentinel. [volume] (Eureka, Nev.) 1902-current, 1910-03-05
DISTRICT COURT PROCEEDINGS
Decision In Paroni-Simonsen Case
Clears Docket Of All Civil
And Criminal Matters

Of the plaintiff. Psroni.
The cause was for specific perform
ance Of q written agreement to convey
. one-quarter interest In certain mining
claims situate on the ast side Of Pros
pect Mountain. The agreement, which
10 In the hand writing Of Simonsen.
states that IL Simonsen failed to pay
Paroni the sum OF t23i.s5. due Paroni
for merchandise and cash, within six
months from date. he, %Simonsen, would
forfeit his interest in the claims. The
writing bears date Of September %.
1907, and 10 primitively drawn. Ia re-
gard to the instrument the Court says:
ut will be seen at . glance that the
chief difficulty Of . Court in determin-
ing the rights of the parties. lies in the
imperfect name in which the written
agreement. set out in the complaint and
answer, has been drawn. II was made
and executed by . msn evidently not
well versed in such work; and accepted
BY q man who. though in active bust.
ness, is just IS little competent to use a
phraseology which would render q writ
ten agreement plain and unambiguous. q
fact demonstrated by his answer to
questions and statement Of the transac.
ton at the trial Of the case. Under
such conditions it is conceived to be the
duty of the Court to enquire into all the
circumstance attending the transac-
ton 1t the date Of the making Of the
agreement in order to discover the real
intentions Of plaintiff aud defendant.
and render Judgment in accordance
Herewith. To the evidence. therefore,
brought out at the trial Of the cause we
must 90 to ascertain the intentions Of
plaintiff and defendant, keeping always
in mind and giving due consideration
to the language used in the instrument
ITSELF"
The Court then quotes at length, and
often verbatim, the evidence in the
case, and comments on the same.
Il seems the defendant failed to ap.
pear and testify in support of his IN.
swer and did not put a witness On the
stand in his behalf, except Mr.. Berry.
man. and he only as to the value Of the
property.
The Court refers to the absence of the
defendant. and of testimony to support
his contentious as follows:
"The failure of Simonsen. who must
have had as good an understanding of
the entire transaction as any living
person. to appear aud testify in support
Of his case. without an effort being
made to account for his absence, or for
the failure to take his deposition, was
well calculated to raise an inference
against his contentious. It is . rule Of
law, that the absence Of q defendant
under such circumstances raises a pre-
sumption against his ability to sustain
his cause In Bastrop State Bank VS..
Levy, LOG. La. 6S8, 81. So. 164. the Court
said: "Litigants W the duty of assist
ing in every Legitimate way in the eluci-
dation Of the truth. When q defendant
q by his own testimony throw light
upon matters at issue, necessary to his
defense, and peculiarly within his own
knowledge. if the facts exist. and fails
to go upon the witness stand, the pre-
sumption is raised, aud will be given ef-
feet t.. that the facts do no. exist The
same rule is laid down in Kirby We.
Talma1ge 100 U. 8. S78."
The court discusses the case at con-
siderable length, and on the question
of inadequacy of consideration, points
u that in the same year. 1907, defend.
ant sold to Martin Mahoney q one.
fourth interest in the same property for
$3.50. or $S1 less than paid him (Simon.
SEM by Paroni that Bergman testified,
no work had been done on the claims ur
to 1907, except location and assessment
work Of about the value of two or three
hundred dollars. That: Had the prop
erty seemed to defendant Of any greater
value Chan the SUN paid. it would moi
have taken six months, o one month
to obtain by loan or otherwise q sun
sufficient to pay off Paroni. 1t may be
and doubtless is the fact, that subse'
quent developments in adjacent claimi
have increased the speculative value Of
the ground since 1907, and very likely il
is because of such supposed develop
ments that the defendant has seen fit tc
turn his back upon q deliberate agree
ment made and all but forced on plain.
tiff by defendant"
The Court then concludes: "To this
Court there is nothing in the transaction
as shown by the evidence, to show
fraud, actual or implied, 90 far al least
as plaintiff is concerned. There Is
nothing to show i~nadequacy of con.
s~ideration. The whole transaction
teens with mutually. il the evidence,
uncontradicted as it is. be Of moment.
II the written contract itself contains
an element Of uncertainty. the CONVEX
sations. acts and conduct Of the parties
make the intentions Of the litigapts pos
itively certain, ETC., etc.
Judgment was ordered for plaintiff
and for his costs,