Hale v. Knapp ( 1903 )

Grant, J.

(after stating the facts). The principal assignments of error relate to the charge of the court. Counsel assert that the charge was “argumentative, contradictory, inconsistent, and unduly emphasized the theory of the defense.” We have carefully examined the charge, and do not consider it subject to this criticism. The issues were fairly submitted to the jury. Among the items was one for $25 for a day’s trip with defendant to Mesick to see the property of which plaintiff had the sale for other parties, and another item of expense in going and coming. The court instructed the jury to reject these items, and we think correctly. He instructed them that, these items being illegal and no claim against the defendant, they had a right to take them into consideration in determining whether the other items in the bill of particulars were legitimate or not. We do not think this was error, in view of the character of the claim for services in going with defendant to see the property at Mesick.

In one portion of his instruction the court said that the-plaintiff must have a clear preponderance of evidence. Standing by itself, this, as we have held, would be error but the court, near the close of his instructions, explained to the jury what he meant, in the following language:

“That does not mean that he must produce before you the greater number of witnesses, but that the testimony of the witnesses he does produce must carry greater weight with you — have more convincing force — than the other. In other words, if the testimony is, in your judgment, evenly balanced, your verdict must be for the defendant, because the plaintiff must establish his case by a preponderance of the evidence.”

Under this instruction we think there was no prejudicial erroir.

Counsel allege error upon some remarks of counsel for defendant in his argument to the jury. We are not prepared to say that they were not justified by the evidence.

Several questions are raised upon the admission and rejection of testimony. We find no error in them, and do not regard them of sufficient importance to the profession to merit discussion.

The judgment is affirmed.

The other Justices cbncurred.