an inference. The instruction given by the court was a correct statement of the law, couched in the language usually employed in charging the jury in such cases, and the record does not show that there was any request by the defendant company to explain the meaning of the words referred to; and, moreover, it is manifest that this court cannot assume that the jury did not understand the court's instruction. the car before the collision, the company can- | indeed, it was admitted that it would be imnot be held liable for the resultant injury. possible to say whether the jury drew such But there is another principle of law equally well settled in this state, which is that if the motorman sees, or by the exercise of reasonable care could have seen, the person injured in a position of danger upon the tracks, it is his duty to do everything that a reasonably careful and prudent man would do under like circumstances to avoid the accident. If he fails to perform this duty, and injury results therefrom, he is guilty of negligence. In other words, even though a person be negligently upon the tracks, a motorman may not run him down, but must do all that he reasonably can do to avoid injuring him. Applying these principles to the present case, the crucial question to be determined, in the light of the testimony adduced, is whether Lynch was in a position of safety or danger at the time the motorman loosened his brakes and ran his car towards him at a rate of speed which some of the witnesses testified was as great as 8 or 10 miles an hour. It cannot be said to be clearly a case where the deceased, being in a position of safety, so suddenly placed himself in the way of a car as to make it impossible for the motorman to avoid the accident. The motorman admits that he saw him upon the tracks, and held his car at a very low rate of speed until he thought that the danger was passed. But was the danger passed, and had the motorman a right to assume that he could safely pass Lynch while standing so near the track, watching a team that was approaching? The motorman testified that Lynch had stopped and was looking at the team, which was moving along with the car. We do not say that the motorman was negligent in running his car as he did at the time of the accident. Neither do we say the deceased was not negligent when he made the step backward toward the track. But we are clearly of the opinion that it was a question for the jury to determine, under all the facts, conditions, and circumstances existing at the time and disclosed by the testimony, whether the motorman was negligent, and, if he was, whether the defendant was released from liability on account of contributory negligence on the part of the deceased. It is also assigned as error that the court instructed the jury as follows: "In civil cases the determination of the jury should be in favor of that party for whom is the preponderance or greater weight of the evidence"-without explaining what was meant by the "preponderance" or "greater weight" of the evidence. It is argued by the plaintiff in error that such an instruction, unexplained, might have led the jury to infer that the "preponderance" or "greater weight" of the evidence might mean the number of witnesses. But little reliance, we think, was placed upon this point in the argument, and, We find no error in the record of the proceedings below, and the judgment of the court is therefore affirmed. In an action on a note executed by defendant and another in 1883 and due in 1884, where there was no evidence that indorsements of part payment were made thereon by defendant, the indorsements were not admissible in evidence. though the note itself was admissible, as against the objection that the note was presumed to be paid. [Ed. Note.-For other cases, see Payment, Cent. Dig. § 188; Dec. Dig. § 66.*] 2. PAYMENT (§ 66*)-PRESUMPTION-LAPSE OF TIME-REBUTTAL. In an action on a note executed to plaintiff's intestate by defendant and another, and more than 20 years overdue, testimony by plaintiff that intestate got some oyster shells from the other maker of the note, which were to be applied in part payment thereof, was inadmissible. Cent. Dig. § 188; Dec. Dig. § 66.*] [Ed. Note.-For other cases, see Payment, 3. EVIDENCE (§ 213*)-ADMISSIONS-COMPROMISE. In an action on a note, evidence that the maker talked with the payee's administrator and wanted to settle the note by paying the principal only, was inadmissible, though his acknowledgment of indebtedness was admissible. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 745; Dec. Dig. § 213.*] 4. PAYMENT (§ 66*)-PRESUMPTION-LAPSE OF TIME-REBUTTAL. An admission of the existence of the debt represented by a note executed more than 20 years before the bringing of an action thereon, in order to dispose of the presumption of payment, must have been an express acknowledgment of an existing debt. [Ed. Note.-For other cases, see Payment, Cent. Dig. 188; Dec. Dig. § 66.*] 5. PAYMENT ($ 76*)-QUESTIONS FOR JURY REBUTTAL OF PRESUMPTION-ACKNOWLEDGMENT OF DEBT. In an action on a note executed more than 20 years before bringing the action, whether defendant acknowledged the indebtedness within the 20 years before bringing the action held for the jury. [Ed. Note. For other cases, see Payment, Dec. Dig. § 76.*] Action by Joshua R. Hudson, administrator, Q. Do you know how they were to be applied? of John H. Hudson, deceased, against Wil- A. To payment on that note. Mr. James F. liam L. Williams, to recover balance due on Williams furnished the oyster shells." a $250 note dated September 13, 1883, and due March 1, 1884. Verdict for plaintiff. Argued before LORE, C. J., and PENNEWILL, J. Robert C. White and James M. Tunnell, for plaintiff. Charles W. Cullen, for defendant. At the trial, the following matters of evidence were ruled upon, namely: Mr. Cullen here moved to strike out the above answer, on the ground that it did not bind the defendant. Mr. White, of counsel for plaintiff, contended that said testimony rebutted the presumption of payment. LORE, C. J. We admit the testimony, subject to the charge of the court. "Q. When was that? A. I don't exactly know; somewhere about nine years ago. Q. Who made that payment? A. James F. Williams." On cross-examination the witness testified in part as follows: Joseph McCabe, a witness, being produced on behalf of the plaintiff, testified that he knew James F. Williams in his lifetime, and By Mr. Cullen: "X. Was Mr. Williams also William L. Williams, the defendant; talking to you about the settlement of this that he remembered the note in suit, and suit? A. Yes, sir. X. And that was why identified his signature as a witness upon he agreed to give you $250? A. Yes, sir. the same; and that he saw both William L. x. Was that in compromise of this suit? Williams and James F. Williams sign the A. No, sir; he told me to go and see my said note and acknowledge it to be their sisters, to see what they said about it, and hand and seal. Thereupon Mr. White, of he wanted to settle it if he could for $250. counsel for plaintiff, offered said note in evi- x. Was that all that was done on the note? dence, together with indorsements thereon of A. No, sir; that was just the principal. X. payments made by the plaintiff's intestate. Were there any other matters of dispute beMr. Cullen, counsel for defendant, objected tween you and William L. Williams? A. No, to the admission of the note in evidence, on sir. X. Was there any settlement between the ground that the debt was more than 20 you and him of the matters of difference? years old prior to the bringing of suit, hold-A. Yes, sir; if I had agreed to it; but I ing that the note was presumed to have been paid. LORE, C. J. We understand you offer the note in evidence to bind the defendant? Mr. White: Yes, sir. PENNEWILL, J. This witness does not know when the credit was made on the note, does he? Mr. White: No, sir; he does not. LORE, C. J. How does it appear that the other party had anything to do with that at all? You have, we understand, no authority to the effect that indorsements by the holder of the note can bind the other party. We think the note should be admitted, but not the indorsements. Joshua R. Hudson, the plaintiff, testified that William L. Williams, the defendant, "came to see me about the note about a month ago. He offered to pay the face of the note-$250." Mr. Cullen, counsel for defendant, moved to strike out the above answer, as to said offer, as irrelevant; there being no count in the plaintiff's declaration to support the same. LORE, C. J. We will allow the answer to remain in, subject to instructions to the jury by the court. By Mr. White: "Q. Did he say anything about owing or not owing this note? A. He said he knew the debt had not been paid. Q. Do you know anything about any payments that were made to your father on that note? A. No, sir; I do not. Q. Do you know anything about any oyster shells? A. didn't agree to it." Mr. Cullen here moved to strike out the testimony of the witness in direct examination as to oyster shells. LORE, C. J. We think all that he said about those oyster shells ought to go out, and also all that he said in reference to a compromise and settlement by part payment of the claim, leaving only his acknowledgment that the debt was not paid. LORE, C. J. (charging jury). This is an action of debt, brought by Joshua R. Hudson, administrator of John H. Hudson, against William L. Williams, upon a joint note or instrument under seal, made by James L. Williams and William L. Williams together, which bears date September 13, 1883, for the payment of the sum of $250, and was due on the 1st of March, 1884. One of the defendants, we understand, has died, and the suit, therefore, is brought against the remaining defendant, William L. Williams, the one who is the defendant in this suit. The claim is for $250, with interest from September 13, 1883, with a credit of $40 on the 4th of April, 1890, and $6 in the year 1900. To this the defendant sets up two pleas, nil debet and payment, upon which latter we understand the defendant chiefly relies. The defendant's claim is that, this note having been made and due on the 1st of March, 1884, the presumption of law is that it was paid 20 years thereafter-that is, about 1904 butted by proof in this case. the question before you now. That is really be considered by you; also all testimony which the court has excluded you are not to consider. The plaintiff claims in this case that there has been a distinct admission upon the part of William L. Williams, the defendant, of the existence of this debt, the purport of which you will remember. In order for such a claim to dispose of the presumption of payment from the lapse of 20 years after maturity, we say to you that such an acknowledgment must be an express acknowledgment of an existing debt. It is claimed on the part of the defendant that that acknowledgment was made in an effort to compromise the suit between the parties. The law does encourage the adjustment and settlement of suits and trials, made out of court. But while that rule is good, and applies to all matters pertaining particularly to the of fer of settlement, yet it does not also in clude all statements of fact. Where plaintiff exchanged a horse with desubsequently disposed of the horse as his own fendant for a note on Sunday, and defendant before plaintiff sued him for deceit in respect to the transaction, which plaintiff afterwards did, they both ratified the Sunday contract. [Ed. Note. For other cases, see Sunday, Cent. Dig. § 46; Dec. Dig. § 15.*] 2. ELECTION OF REMEDIES (§ 3*)-ELECTION TO AFFIRM CONTRACT-BINDING EFFECT. Plaintiff having ratified the contract by bringing the suit, he was bound by his ratification, he having elected to affirm and not to disaffirm; the two being inconsistent remedies, so that the election of one would preclude resort to the other. [Ed. Note.-For other cases, see Election of Remedies, Cent. Dig. §§ 3, 4; Dec. Dig. § 3.*] 3. FRAUD (§ 11*)—MATTERS OF FACT OR OF OPINION. In an action for deceit for misrepresentations as to the ability to pay of the maker of a note exchanged by defendant for plaintiff's horse, testimony that defendant told plaintiff that he could get the money on the note at any time was more than a mere opinion, but was capable of being understood as meaning that the maker of the note was pecuniarily able to pay the note at any time. The rule of law upon that subject is very clearly stated in 1 Greenleaf on Evidence, p. 322, § 192: "In order to exclude distinct admissions of facts, it must appear, either that they were expressly made without prejudice, or at least that they were made under the force of a pending treaty, and into which the party might have been led by the confidence of a compromise taking place." The rule is also well stated in American and English Encyclopædia of Law (2d Ed.) vol. 1, p. 714: "Admissions made expressly for the purpose of effecting a compromise of a matter under controversy, and offers of money to buy peace, if not accepted, cannot be proved against the party making them. But admissions of independent facts are receivable in evidence, though made during negotiations for a compromise." As tending to show that defendant, who And in the case of Scofield v. Parlin, 61 Fed. traded a note for plaintiff's horse and represent804, 10 C. C. A. 83, the court used this lan-ed that the note was collectible, knew that the guage: "Where the execution of the contract sued on is denied by the defendant, the latter offering to compromise the claim and making an express recognition of the contract is admissible in evidence as an admis sion of the execution of the contract." [Ed. Note.-For other cases, see Fraud, Cent. Dig. 88 12, 13; Dec. Dig. § 11.*] 4. FRAUD (8 54*)-DECEIT-ACTION-ADMISSI BILITY OF EVIDENCE. maker could not pay the note, it was compe- 5. FRAUD (§ 13*)-Deceit RepreSENTATIONS. Exceptions from Windham County Court; George M. Powers, Judge. We have been asked by counsel for the defendant to direct you to return a verdict for the defendant. This we decline to do. We leave the matter for you to say, under the evidence in this case, whether the presumption of payment in this case has been rebutted under the law as we have read it to you, governing the evidence as you have heard it. If from that evidence you are satisfied that there has been a distinct acknowledgment of Action by Richard A. Corey against Delindebtedness upon the note on the part of the bert A. Boynton. Judgment for plaintiff, and defendant within 20 years before the bring-defendant excepts. Affirmed. ing of this suit, your verdict should be for the plaintiff; but if, on the other hand, you are not so satisfied, your verdict should be for the defendant. We will say to you that this indorsement on the note is not in evidence, and is not to Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, and HASELTON, JJ. O. R. Clayton and Gibson & Waterman, for plaintiff. Loren R. Pierce and J. K. Batch. elder, for defendant. ROWELL, C. J. This is case for deceit in | petent for the plaintiff to show the history of the exchange of a promissory note for the the note, as he did, with nothing ever paid plaintiff's horse. It appeared that one Un- on it. win gave his promissory note to the defend- The defendant requested the court to ant in 1893, on which the defendant recov- charge that if the statements relative to Unered judgment for the full amount in 1900, win's financial responsibility and property, and that subsequently Unwin gave the note made by the defendant at the time of the in question to the defendant in satisfaction | trade, were made in good faith in consequence of the judgment. The plaintiff claimed that of representations made to him by Unwin, the defendant represented to him, as an in- he would not be liable, though they were not ducement to make the trade, that Unwin true in fact. The court refused to charge owned a farm and quite a large stock of cat- thus, but charged that if the defendant made tle in Grafton, and that the plaintiff could the statements as of his own knowledge, get the money on the note from Unwin when- when he was aware that he had no such ever he sent for it or demanded it. The knowledge, but was stating only what he beplaintiff further claimed that Unwin did not lieved to be true, he would be liable. This own a farm, nor any real estate, nor any was right. Cabot v. Christie, 42 Vt. 121, 1 stock of cattle, in Grafton or elsewhere, and Am. Rep. 313. that he could not get the money on the note from Unwin at any time, all which the defendant then and there well knew. The trade was made and fully completed and ended on Sunday. It appeared that the defendant kept the horse and traded it off before suit brought, and thus took the benefit of the trade with the plaintiff. The court charged that this was a ratification of the trade by the defendant, and that the rights of the parties were just the same as they would have been had the trade been on a week day. The defendant says that this charge raises the simple question whether a contract for the exchange of property, made and consummated on Sunday, is ratified by the mere subsequent retention of the property by the parties without protest, demand, or offer to return, and contends that such a retention is no ratification. But here is more than a mere retention, for the defendant disposed of the horse as his own before suit brought, and appropriated the avails to his own use, and that was a ratification of the contract on his part, for he thereby treated it as in force. Flinn v. St. John, 51 Vt. 334, 345. And the plaintiff ratified it by bringing this suit, for that was an election to affirm it, and not to disaffirm it, and he is bound by it; for to affirm and to disaffirm are inconsistent remedies, and the election of one precludes resort to the other. White v. White, 68 Vt. 161, 34 Atl. 425; Pawlet v. Kelly, 69 Vt. 398, 38 Atl. 92; Farrar v. Powell, 71 Vt. 247, 251, 44 Atl. 344. Judgment affirmed. (82 Vt. 181) PROUTY V. NICHOLS. (Supreme Court of Vermont. Brattleboro. May 10, 1909.) 1. PRINCIPAL AND AGENT (§ 20*)—EXISTENCE OF RELATION-EVIDENCE-LICENSE TO SELL. In an action by a lessor for conversion of oxen bought by defendant from the lessee, the oxen being included in the written lease, which tion of the lease return the personal property provided that the lessee should at the expiraleased or its equivalent in as good condition as received, an offer of evidence that the lessor of the lease, who advised that the lessee had a and lessee had conferred with the draftsman right thereunder to sell the oxen, and the lessor and lessee agreed to construe the lease as giving the lessee such right, and that they acted upon erly excluded, as it tended to show a license to that agreement until after the sale, was impropthe lessee to sell the oxen, which would preclude plaintiff's recovery. [Ed. Note. For other cases, see Principal and Agent, Dec. Dig. § 20.*] 2. PRINCIPAL AND AGENT (§ 20*)-EXISTENCE [Ed. Note.-For other cases, see Principal and Agent, Dec. Dig. § 20.*] 3. PRINCIPAL AND AGENT (§ 12*)—SALE UNDER LICENSE. Fact that the lease was under seal would have no bearing on the question of the license to sell. Agent, Dec. Dig. § 12.*] The defendant objects that it was error to allow the plaintiff to testify that the defendant told him that he could get the money on the note at any time, for that the statement was in its very nature only an opinion, and must have been so understood by the parties. But it was capable of being understood as meaning that Unwin was pecuniarily able to pay the note at any time, and therefore it was for the jury to say how the parties understood it. As tending to show that the defendant knew that Unwin could not pay the note as he represented, it was com In an action for conversion of property sold to defendant by a lessee of plaintiff, a question, asked the lessee, whether, when he sold the property, he informed defendant of any conversation he had had with plaintiff in regard to selling, to show license or agency of the lessee, was properly excluded, since such license of the licensee or agent. or agency could not be proved by a declaration [Ed. Note.-For other cases, see Principal and Agent, Cent Dig. § 40; Dec. Dig. § 22.*] 5. PRINCIPAL AND AGENT (§ 14*) - HIRE OR USE PERMISSION TO EXCHANGE PROPERTY. Permission by the lessor to the lessee of a farm, with the implements and live stock thereon, to exchange the personal property leased, would not give him the right to sell it. [Ed. Note. For other cases, see Principal and Agent, Dec. Dig. § 14.*] That part of the offer which related to the advice of the draftsman tended merely to show how it was that the parties came to treat the lease as they did, and how it came about that the license offered to be shown was granted. The offer was not vitiated by anything contained in it. The fact that the Exceptions from Windham County Court; lease was a sealed instrument has no bearing George M. Powers, Judge. Action by Elias Prouty against Herbert N. Nichols. Judgment for plaintiff, and defendant excepts. Reversed and remanded. Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ. upon the question of a license to sell. Hunt v. Allen, 73 Vt. 322, 50 Atl. 1103; Lawrence v. Dole, 11 Vt. 549. During the examination of Platt he was asked this question: "At the time you sold the oxen to Mr. Nichols, did you inform Mr. Nichols that you had had any conversation Chase & Daley, for plaintiff, Herbert G. with Mr. Prouty, the plaintiff, in regard to & Frank E. Barber, for defendant. HASELTON, J. This was an action of trover for the alleged conversion of a yoke of oxen. Trial by jury was had. A verdict for the plaintiff was returned, and judgment was rendered thereon. The plaintiff leased a farm, with the farming implements and the live stock thereon, to one Platt for a term of five years. Included in the live stock was a certain yoke of oxen. The lease, which was in writing, and which was duly signed, sealed, delivered, and recorded, contained the following clause: "At the expiration of this lease the party of the second part does agree with the party of the first part to return to said party of the first part the above personal property or its equivalent in as good condition as it is received, loss by fire and accident excepted." Counsel agree that by the terms of the lease Platt did not have the right to sell the live stock referred to. Nevertheless he sold the oxen to the defendant and received pay therefor. selling the oxen?" The question was excluded, and an exception was taken. In excluding this question there was no error. There was no offer; but, in view of other evidence in the case, this question appears to have been an attempt to prove license or agency by the declarations of the licensee or agent. This could not be done. Sias v. Lighting Co., 73 Vt. 35, 50 Atl. 554. The court instructed the jury that, if the plaintiff had given Platt leave to exchange the oxen, that would not give Platt a right to sell them. The defendant excepted to this instruction; but in the circumstances of this case we think the instruction was correct. The lessor might well consent to an exchange, but refuse to consent to a sale proper; for in case of exchange the stock would quite likely be kept good, whereas a sale without a corresponding purchase would deplete it. For error in excluding evidence under the offer to show a license to sell, the judgment is reversed, and the cause remanded. LER & CO. (82 Vt. 230) (Supreme Court of Vermont. Washington. May 19, 1909.) 1. MASTER AND SERVANT (§ 264*)—ACTIONS FOR INJURIES-PLEADING VARIANCE. testate, while at work with a dump car at deIn an action for the death of plaintiff's infendant's stone quarry, the complaint, in describing the accident which caused his death, alleged that "the said plaintiff's intestate, in there put to work by the said defendants in pursuance of said employment, was then and the use and operation of a certain dump car, furnished by the said defendants for the said plaintiff's intestate to work with and assist in operating in removing refuse and grout from said defendant's quarry to the defendant's dump." Held, that proof that the accident occurred while the intestate was at work on the dump does not constitute a variance. On trial the defendant offered to show, in substance, that, after the execution and de- FOWLIE'S ADM'X v. McDONALD, CUT livery of the lease, the question as to the right of Platt to sell any of the stock, including the oxen, came up between the plaintiff and Platt, that they conferred with the draftsman of the lease, who advised that Platt had such right to sell, and that the plaintiff and Platt thereupon agreed so to construe the lease, and that Platt had the right to sell the oxen, and that both the plaintiff and Platt acted upon their mutual agreement as to the construction of the lease until a time later than the sale of the oxen by Platt to the defendant Nichols. The offered evidence was excluded, and the defendant excepted. As, however, the evidence offered tended to show a license to sell the oxen, its exclusion was error. If Platt sold the oxen under a license from the plaintiff, although such license was verbal merely, the plaintiff could not recover of the defendant. Colston v. Bean, 77 Vt. 40, 58 Atl. 795; Hunt v. Allen, 73 Vt. 322, 50 Atl. 1103; Lawrence v. Dole, 11 Vt. 549. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 870; Dec. Dig. § 264.*] 2. MASTER AND SERVANT (§ 264*)-VARIANCE -MATERIALITY. testate while at work with a dump car at deIn an action for the death of plaintiff's infendant's stone quarry, the complaint, in describing the accident which caused his death, al |