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evidence, the case falls to the ground; there is no preponderance of evidence; the burden is on the plaintiff, and the plaintiff loses.

If, in the pleadings that bring the case to issue, the defendant admits receiving money but alleges payment, the burden of proof then rests on the defendant to prove payment, and with no preponderance of evidence, the defendant loses.

Placing the Burden. In bringing a case to issue through the pleadings, there is some opportunity for skill in placing the burden of proof upon the opposite party; this is for the lawyer; but the engineer, in collecting evidence, is at some advantage if he has a proper notion as to where the burden is likely to rest.

The rule in a general way is that the party who finds it necessary in his case to affirm that a fact in dispute is true or is not true, has in substance the affirmative, and the burden of proof is on him; this burden he must support by a preponderance of evidence in civil cases; in criminal cases beyond a reasonable doubt. One test as to the burden of proof is as to which party would be successful if no evidence, or if no more evidence, were given.

The burden of proof rests on the party who wishes to support his case by a particular fact peculiarly within his knowledge, or of which he has special means of acquiring knowledge, even though this requires proving a negative. The party who finds it necessary to go forward with evidence not in negation of that presented, sustains the burden. These are some of the views which have been advanced.

Shifting Burden. When evidence has been presented sufficient to make a prima facie case in favor of him on whom the burden of proof rests, his opponent has two courses open; first, to combat this evidence by other evidence opposed to it, to destroy the preponderance; or, second, to introduce evidence leading in another direction, for instance to show that, if true, the evidence presented fails to make a case against him. This raises a new issue and was at one time thought to shift the burden of proof, but at present it seems to be good law that the burden never shifts.

Burden both for Competency and Weight. There may be said to be two sides to the burden of proof. On one side then there is a burden on the proper party to bring to the judge evidence of competent character tending to prove his case, and sufficient, if true, to prove it. On the other side the evidence which is submitted must be sufficiently persuasive to convince the jury by a preponderance of evidence, even though some of it may be disputed by testimony from the other side.

The importance of the burden of proof is evident; the scope of this treatise does not justify an extended discussion of this somewhat intricate question.

Lack of Evidence Presented. It has not infrequently happened that a case has been lost when sufficient evidence was at hand, because either the attorney was unskilled in presenting his evidence, which was ruled inadmissible, or was unfortunate either in the questions asked his witnesses or in their dullness in answering suitably, so that he was unable to bring out the evidence necessary to be presented by his client on whom the burden of proof rested. No effective evidence was presented, and the case was lost. Such a result has sometimes been due to failure to prepare the case properly beforehand.

Persuasiveness. On the other hand, with regard to persuasiveness, much depends upon the presence and clearness of testimony of a witness, and much finally on the skill with which the evidence is presented to the jury, depending upon the arrangement and clearness of presentation of the facts, and perhaps the eloquence or personal magnetism of the attorney.

Summing Up. When all the evidence desired (or admissible) has been presented by both parties to the suit, each attorney has opportunity to sum up, to bring to the attention of the jury the facts which seem to him important, and to arrange these in such a way as to make a clear and favorable presentation of the claims of his client. The judge finally “charges” the jury, that is, instructs them as to the law pertinent to the facts presented in the case, but in this country without expressing any opinion whatever as to the probable truth of matters in dispute as shown by the testimony. It remains only for the jury to retire, to deliberate, and to bring in their verdict, if they succeed in agreeing, which is commonly, but not always the case in civil trials.

CHAPTER III

CONTRACTS

Contracts. It is the purpose of the law to secure to every man justice and as great a measure of freedom and liberty as is consistent with the rights of others. In a community the rights of one man cannot be secured except by placing upon others certain obligations and duties towards him, and from him also are demanded like concessions in order to secure and protect the rights of others. The law therefore has formulated many duties and obligations. For instance, the law expects a man to do what he has seriously agreed to do if another will suffer by his failure to do it. We have thus the Law of Contracts.

Torts. In a similar fashion the law demands that a man shall refrain from many actions which will interfere with the rights of others. A man shall not unwarrantably deprive another of liberty; he shall not be negligent and careless of others to the extent of injuring them; he shall not trespass upon the property of another; he shall not maintain a nuisance to the disadvantage of his neighbors. We have thus the Law of Torts. Contracts and Torts constitute the best known, the most important branches of law, and the present chapter is devoted to the Law of Contracts.

Definition. A contract is a voluntary agreement, between two or more competent parties, for a valid consideration, to do or abstain from doing some lawful act. A contract may or may not be in writing. Many contracts are oral. Essentials. There are four essentials to a contract:

1. Mutual assent to the terms of the agreement.
2. Competent parties.
3. A valid consideration, actual or presumed.

4. Definite and lawful subject matter to be acted upon. If any of these four essentials is lacking there is no contract.

AGREEMENT

Agreement. The parties to a contract must agree; there must be an agreement to the same definite thing which creates the obligation. When the contract is in writing, the agreement is to the thing written, and when

this is signed by both parties the evidence of the agreement is definite if intelligently expressed. But an oral agreement is no less completely a contract in fact. Memory of the terms may fail or there may be a wilful denial of these terms by one of the parties; the enforcement of the contract may thus be difficult or impossible because the evidence is insufficient or inharmonious. In important matters a written contract, signed by both parties, is clearly desirable. In certain cases, to appear later, writing is required by the Statute of Frauds. Proof. Adequate proof of any contract should be secured in those cases where a single writing signed by both parties is burdensome or out of the question. If a dealer offers to sell me 4000 bricks at $5 per thousand, and I accept his offer, the contract is made. No writing is necessary, but one is desirable. A letter or order from me to him fixes the terms, and his delivery shows his acceptance. The evidence is sufficient if there are witnesses to the delivery. Offer and Acceptance. An offer made must be accepted without qualification or there is no contract. Acceptance must be absolute and identical with the terms of the offer; the offer and acceptance must be definite and certain. If a man offers to sell me a steam pump and I agree to take it provided it is as good a pump as the one furnished Smith, there is no contract and I cannot enforce the sale. If, however, he delivers the pump on the strength of my letter of acceptance, by that act he has accepted my qualifications and the original offer, as qualified, has become a contract. An offer generally holds good for a reasonable time, but may be revoked at any time before acceptance. The reasonable time for which an offer holds good will differ for different contracts. Where an offer is sent by mail or telegram, the contract is made when the letter of acceptance is mailed in the post office or post box, or the telegram sent, even though a letter of revocation in the meantime has been mailed but has not reached its destination. The letter of offer and the letter of acceptance together constitute a valid contract. A copy of the letter of offer or acceptance should be retained, in case the other party fails or refuses to produce the original letter at the trial, if there should be one. As has been suggested, the acceptance may be by conduct, by acts, as well as by words (oral or written). Performance constitutes acceptance of an offer and its terms. Implied Contract. When a person orders an article sent him and no price is specified, although he does not specifically agree to pay, the law cures this lack, and supplies the presumption that he agreed to pay. The sum to be paid will be a reasonable price. The careful man, except in minor transactions, will take care to have and preserve proper evidence of the contract or transaction, and to have the terms clear and direct.

Mistake. The agreement must be by both parties to the same thing. A mistake may prevent such an agreement. A mistake as to fact will make a contract null; a mistake as to the law will not because every one is assumed to know the law. Mistakes of fact may be of several kinds: Mistake as to Contract. Mistake as to the nature of the contract. As an example: If a blind or illiterate man has a paper incorrectly read to him, it purporting to be a mortgage, while it is in reality a warranty deed, he has not agreed to the paper which he signed, and this is void as a contract. It is important that the mistake shall not be the result of his own carelessness or negligence. Mistake as to Person. Mistake as to the person contracted with. Mr. Potter became dissatisfied with the Boston Ice Company and terminated his contract with it, and contracted with the Citizens' Ice Company; this company later sold out to the Boston Ice Company, which continued the delivery of ice to Potter, who afterwards learned the facts and refused to pay for the ice. The courts sustained Potter. There was a mistake as to the party, and no contract. When a person receives goods and it is clear that he cares not who furnishes them, he may be required to pay on an implied promise for goods received, but certainly not where he relies on his contract with one party rather than another. Mistake as to Existence. Mistake as to the existence of the thing contracted for. In one case a lumber dealer agreed to buy a tract of timber land and both parties assumed that the timber was standing. The standing timber was evidently the essence of the contract. It was later found that the timber had already been cut off. There existed a mistake of fact and the contract was void. Mistake as to Identity. Mistake as to the identity of the thing contracted for. If I lay my hand on a barrel and say to the dealer: “Send me this barrel of cement and I will pay you $1.50,” and the barrel is in fact a barrel of lime, there is no contract; he can not force me to accept the barrel. He agreed to sell me that particular barrel; I agreed to buy a barrel of cement; there has been no agreement to the same thing, no contract because there is a mistake as to the matter of the contract. Mistake in Expression. Where there has been a clear mistake in expression in a contract, the courts will find some means to correct the contract so as to cover the evident intent. This may be done in a court of Equity to be described later. Effect of Fraud. Fraud will render a contract voidable at the election of the defrauded party. It is essential to fraud that there should be a misstatement of fact, an intent to deceive, and that the innocent party was misled to his injury. The law imposes an obligation not to practice fraud

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