Z.57 
 
 
 
 
 
 5 
 8 
 6 
 
 6 
 3 
 8 
 
 .TS r :OGRAPHIC MISCELLANY 
 

 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
THE 
 
 STENOGRAPHIC 
 MISCELLANY 
 
 J 903 
 
B. 0. BAKER 
 
 LAWYER 
 DALLAS, TEXAS 
 
THE STENOGRAPHIC MISCELLANY 
 
 FOR 1903 
 
PHONETIC SHORTHAND PUBLICATIONS. 
 
 Phonetic Shorthand Manual, $1.25 
 
 Phonetic Shorthand Speed-Book, 1.25 
 
 Phonetic Shorthand Pocket Dictionary, cloth, Sl.'-'S; flexible 
 
 leather, round corners, 1.50 
 
 Student's Pocket Reminder, full-page illustrations, 25 
 
 Phonetic Shorthand Word-Book, 1.25 
 
 The Stenographic Miscellany for 1903, cloth, 1.00 
 
 fS~ Sent postpaid, upon receipt of price by postal or express order, 
 
 or by draft. 
 
 W. W. OSGOODBY, Publisher, 
 
 ROCHESTER, N. Y. 
 
THE 
 
 Stenographic Miscellany 
 
 For 1903 
 
 *. 
 
 >. 
 
 & 
 
 W. W. OSGOODBY, Publisher 
 
 ROCHESTER, N. Y. 
 
COPYRIGHT, 1903, BY WILLIAM W. OSGOODBY. 
 
 E. R. ANDREWS PRINTING Co. 
 
 ROCHESTER, N. Y. 
 
Z57 
 
 CONTENTS. 
 
 The Great Smith Family, 3 
 
 Mr. Bob Sawyer's Party, 6 
 
 American Sailor at Play, 17 
 
 Only a Little Way 18 
 
 Romidus and Rome, 19 
 
 The Two Orders, 21 
 
 A Valuable Picture, 23 
 
 Prime Requisites, 26 
 
 Big Things Lost, 26 
 
 The Telephonic Burglary, 27 
 
 The Sun Cooling Off, 35 
 
 What Shall it Be, 37 
 
 The Old-Fashioned Pocket, 38 
 
 f Curious Bridges, 38 
 
 # Nobody's Child, 39 
 
 >. The Captain of the Ship, 42 
 
 5 A Stomach Complaint, 43 
 
 g Powerful Water Jets, . . . 47 
 
 3 Hearing by Sight, 48 
 
 What is Antiquity f 49 
 
 jj A Good Stenographer, 50 
 
 L The Training of the Eye, 51 
 
 z Consider the End, 52 
 
 = My First Bank Deposit, 53 
 
 Law Office Amanuenses, 54 
 
 Scraps, 55 
 
 3 A Chicago Lunch > 56 
 
 P What is Real? 57 
 
 P The Monroe Doctrine, 58 
 
 Why are You Writing? . 59 
 
 A Question of Speed, 59 
 
 Cousin Fanny 's Story, 60 
 
 Law Report Wilson v . McKay , 61 
 
 Charge to a Jury, 73 
 
 Key to Law Report, 75 
 
 452188 
 
THE 
 
 Stenographic Miscellany 
 
 The Great Smith Family.... ' 
 
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The Great Smith Family. 
 
 
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The Stenographic Miscellany. 
 
 Mr. Bob Sawyer's Party. ...xrll^X..^. . f ..\4._^.. 
 
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Mr. Bob Sauyer's Party. 
 
The Stenographic Miscellany. 
 
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DALLAS, Tt; 
 
 Mr. Bob Sawyer's Party. 
 
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Mr. Bob Sawyer's Party. 
 
 13 
 
14 
 
 The Stenographic Miscellany. 
 
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Mr. Bob Sawyer's Party. 
 
 15 
 
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16 
 
 The Stenographic Miscellany. 
 
 
 
American Sailor at Play. 
 
 17 
 
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18 
 
 The Stenographic Miscellany. 
 
 ONLY A LITTLE WAY. 
 
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Romulus and Rome. 
 
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The Two Orders. 
 
 21 
 
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22 
 
 The Stenographic Miscellany. 
 
 
 
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A Valuable Picture. 
 
 23 
 
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 Valuable Picture.... ^ 
 
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 Tlie Stenographic Miscellany. 
 
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A Valuable Picture. 
 
 25 
 
 
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26 
 
 Tlte Stenographic Miscellany. 
 
 Prime Requisites *r^- 
 
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The Telephonic Burglary. 
 
 27 
 
 The Telephonic Burglary / 
 
 
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 452188 
 
J3 
 
 The Stenographic Miscellany. 
 
 THE OLD-FASHIONED POCKET. 
 
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 The Stenographic Miscellany. 
 
 
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 43 
 
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44 
 
 The Stenographic Miscellany. 
 
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A Stomach Complaint Powerful Water Jets. 47 
 
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48 
 
 The Stenographic Miscellany. 
 
 
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What is Antiquity ? 
 
 49 
 
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50 
 
 The Stenographic Miscellany. 
 
 
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The Training o) the Eye. 
 
 51 
 
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 The Stenographic Miscellany. 
 
 Consider the End:. ______ ts-. 
 
 
 
 
My First Bank Deposit. 
 
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 The Stenographic Miscellany. 
 
 A Chicago Lunch v.^-.A- 
 
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W hat is Real ? 
 
 57 
 
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Why are you Writing? -A Question of Speed. 59 
 
 Why are you 
 
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 The Stenographic Miscellany. 
 
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Law Report Wilson vs. McKay. 
 
 61 
 
 Supreme Court. ^-^V^x^/- ^A. --^ 
 
 Orrin Wilson ] E ^ Carter , 
 
 v. \ 
 
 ., ,. ,, Jas. R. Kelly. 
 
 Arthur McKay.\ 
 
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64 The Stenographic Miscellany. 
 
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Key to Law Report. 75 
 
 SUPREME COURT Before Mr. Justice HUBBELL, and a jury. 
 OBBIN WILSON 
 
 for plff 
 
 vs. 
 
 . , , ,_ James R. Kellv. for deft. 
 
 ARTHUB MCKAY. 
 
 Elmira, N. Y., February 7, 1904. 
 Wilson, Orrin, sworn. 
 To Mr. Carter: 
 
 Q. Where do you reside? A. In Byron. 
 
 Q. You have lived there how long? A. Three and a half years. 
 
 Q. Before going there, where did you live? A. In Buffalo. 
 
 Q. What is your business? A. I am president of a manufac- 
 turing company. 
 
 Q. Have you any other business? A. Yes, sir. 
 
 Q. You did other business within the last six months, and at 
 and after the time of the transaction in this action? A. Yes, sir. 
 
 Q. What was your business, in connection with this matter? 
 A. I was president of an iron company, and engaged in raising 
 money for certain purposes. 
 
 Q. Had you had any experience in mining? A. I was superin- 
 tendent of mines, and for a number of years I have been connected 
 with the business, in one way and another. 
 
 Q. You knew of the iron mine in question, located in the north- 
 ern part of the state? A. Yes, sir. 
 
 Q. How long have you known about it? A. The first I knew 
 about it, was about six or eight months before the contract in 
 question was made. 
 
 Q. Describe briefly the situation of the mine and mineral de- 
 posits there ? A. The mine is situated three or four miles from 
 the nearest railroad station. It is a mineral that contains iron 
 and sulphur. 
 
 Q. How is the foreign matter taken out of the mineral ? A. 
 They use a concentrating plant to take out the foreign matter, so 
 that the product will run as high as possible in sulphur. That is 
 used in making sulphuric acid, which is used in refining crude 
 oil and in making paper. 
 
 Q. Sulphuric acid is the valuable element in the ore? A. Yes, 
 sir. 
 
 Q. In order to make this ore of value, must it go through a. 
 crushing process? A. Yes, sir, and concentrating. 
 
 Q. Is there any place in that vicinity where that can be done ? 
 A. Yes, sir; Mr. McKay does it. 
 
76 The Stenographic Miscellany. 
 
 Q. After that is done, is there occasion for shipping the ore?- 
 A. Yes, sir. 
 
 Q. What is the next process, after crushing? A. Taking out 
 as much foreign matter as possible, and then it is shipped. 
 
 Q. What takes place after that? A. It is burnt. 
 
 Q. There is no place in the immediate vicinity of the mines, 
 where the burning process can be had? A. No, sir. 
 
 Q. And it is necessary that it be shipped away? A. Yes. >ir. 
 
 Q. State in regard to the matter? A. Before I had anything 
 to do with it, I looked over the property sufficient to satisfy my- 
 self that the quantity was almost inexhaustible. I found old 
 shafts sunk down to a considerable depth, and I saw hills of it 
 through which they were then cutting and opening to it, and the 
 supply seemed to be inexhaustible. 
 
 Q. Was there any question in regard to this supply continuing 
 for at least ten years? . 
 
 Objected to, as calling for a conclusion of the witness. 
 
 Q. Can you make that a little more definite, and say how long 
 a period it would last, at a certain amount of shipment a day 
 say, a shipment of eighty tons a day? 
 
 Objected to, as immaterial and incompetent, and as call- 
 ing for the conclusion of the witness, and as incompe- 
 tent on the measure of damages. 
 
 The Court: You may show by the witness the number of 
 tons of ore there was in that mine, if you can. 
 
 The question was withdrawn. 
 
 Q. Have you had experience in the construction of railroads? 
 A. I have. 
 
 Q. To what extent ? A. I was general manager of seven hun- 
 dred miles that is now part of the Pennsylvania Railroad, and had 
 charge of building about three hundred miles of it. 
 
 Q. You had a knowledge of the cost of constructing railroads,, 
 at the time of the making of this contract? A. Yes, sir. 
 
 Q. Did you observe the right of way over which it was proposed 
 to build this road? A. I did. 
 
 Q. When was your first talk with Mr. McKay, in regard to the 
 construction of a railroad from this mine to the Rome and Water- 
 town Railroad ? A. It was on the twenty-eighth of July. 
 
 Q. That was about a month before the making of these papers?" 
 A. Yes, sir. 
 
 Q. Where did you see him? A. At the mines. 
 
Key to Law Report. 77 
 
 Q. Before that time, had you received any word from him? 
 A. Not directly. 
 
 Q. You went there to see him? A. Yes, sir. 
 
 Q. Did you have a conversation with him there? A. Yes, sir. 
 
 Q. Who else was present at the conversation? A. Mr. Barton. 
 
 Q. Anybody else? A. No. 
 
 Q. Barton was one of the parties who signed the contract, later 
 on ? A. Yes, sir. 
 
 Q. Did you have a talk with them in regard to the construction 
 of the railroad? A. Yes, sir. 
 
 Q. How long a time did the conversation take? A. About a 
 day, 1 should judge. 
 
 Q. Give us an outline of that talk. 
 
 Objected to, as immaterial and incompetent, and that it 
 
 was afterwards embodied in the contract. 
 Mr. Carter: It is not with a view of altering the terms 
 of the agreement, that I ask this. Everything that 
 was material was not embodied in the contract. 
 
 Q. Was there any talk, aside from this one that you speak of, 
 subsequent to the 28th of July and before the making of the con- 
 tract? A. Yes, sir. 
 
 Q. When was that? A. That was on the 26th and 27th of 
 August. 
 
 Q. The contract was executed on the 28th? A. On the 27th of 
 August. 
 
 Q. At whose instance did you go there on the 26th? A. I took 
 Clifford and his attorney there. 
 
 Q. He is the third party to the agreement? A. Yes, sir. 
 
 Q. Did you have any conversation with regard to the contract, 
 on the 26th? A. Yes, sir; we talked half the day and all the 
 evening about it. 
 
 Q. On the following day, the paper was signed? A. Yes, sir. 
 We drove up to the mines, on that day. 
 
 Q. Do you know whether that paper was recorded or not? I 
 show you a paper, and ask whether that is a copy of the agree- 
 ment made on that day? A. There was but one copy made. 
 Clifford's attorney took that. 
 
 Q. Examine this, and state whether it is a correct copy of that 
 paper? A. It is. 
 
 A certified copy of the record of the contract was offered 
 
 in evidence, dated August 27, 1902. 
 Objected to, as immaterial and incompetent, and not the 
 
 best evidence. 
 Received; exception. Marked Exhibit 1. 
 
78 The Stenographic Miscellany. 
 
 Q. Was there a talk had in your presence with regard to re- 
 cording this paper? A. I don't think there was, at that time; 
 there was afterwards. 
 
 Q. Did McKay take part in that conversation? A. I don't 
 think he did. 
 
 Q. This paper I have shown you is a copy of the contract, and 
 the same as is set forth in the complaint? Yes, sir. 
 
 Q. How long were you there, after the execution of the paper? 
 A. It was executed about eleven o'clock at night, and I left about 
 seven o'clock the next morning. 
 
 Q. Did you see McKay again, before you received a letter from 
 him stating that the deal was off? A. No, .sir. 
 
 Q. I show you a letter and envelope, and a>;k if they were re- 
 ceived by you? A. They were. 
 
 The letter and envelope were put in evidence letter dated 
 August 30, 1902. Exh. 2, 3. 
 
 Q. When did you first see the defendant again, after that time? 
 A. On the eleventh of September. 
 
 Q. That was where? A. In New York, at the Grand Hotel. 
 
 Q. Was that the first time you saw him after that? A. Yes, 
 sir. 
 
 Q. Who was present? A. Barton, and McKay, and myself. 
 
 Q. Clifford was not there, at that time? A. Xo, sir. 
 
 Q. Prior to that time, had you delivered a letter for Clifford to 
 the defendant? A. Yes, sir. 
 
 McKay, Arthur, sworn. 
 To Mr. Carter: 
 
 Q. You are the defendant in this action? A. Yes, sir. 
 
 Q. I show you a letter; do you recall the contents of that? A. 
 I couldn't say whether it was exactly like that, but it was prac- 
 tically the same thing. 
 
 Q. "So far as you know, it was the same? A. I couldn't -ay. 
 
 Q. Do you know where the original of that letter is? A. Xo r 
 sir. 
 
 Q. Was it among the papers which you delivered to your at- 
 torney in this case? A. I don't know whether it was or not. I 
 had a letter from Mr. Clifford. 
 
 Q. Is this the letter, which your attorney has handed to me?- 
 Did you receive that in Xew York city, at the time of its date? 
 A. Yes, sir. 
 
Key to Law Report. 79. 
 
 The letter was offered in evidence. 
 
 Objected to, as immaterial and incompetent, and not bind- 
 ing upon the defendant. 
 
 Letter marked Exh. 4, for identification. 
 Wilson, Orrin, recalled. 
 To Mr. Carter : 
 
 Q. I show you exhibit 4 have you ever seen that letter before? 
 A. I did, on September 10, 1902. 
 
 Q. Did you see it before it was delivered to the defendant? A. 
 Yes, sir. 
 
 Q. Whom did you take it from? A. From Mr. Clifford. 
 
 Q. Did you make a copy of it, at that time ? A. I did. 
 
 Q. And then did what with it? A. Left it at the Grand Hotel 
 for Mr. McKay. 
 
 Q. You sav you had a talk when McKay and Barton were pres- 
 ent? A. I did. 
 
 Q. Was exhibit 4 shown there, and commented upon? A. Yes, 
 sir. 
 
 The letter was again offered in evidence, dated September 
 
 10, 1902, Exh. 4. 
 
 Objected to, as immaterial, incompetent, and irrelevant. 
 Received; exception. 
 
 Q. State what took place in the conversation between yourself 
 and Barton and McKay ? 
 
 Mr. Kelly: I object to any conversation, as not binding 
 upon the defendant. Received. 
 
 Q. Who spoke first, and what was said? A. I asked McKay 
 whether he had got the letter I had left in his box the night before. 
 He said he had, and took that letter out. I asked if he was going 
 to comply with the request. He said there was no use of that 
 that the lease was put up as collateral security with some one 
 else. I asked if he didn't know that at the time the contract was 
 made. He said he didn't understand it was in the agreement. 
 Then he went on to explain that he had sold a quarter interest in 
 the property for $25,000, under an agreement with the pui-chaser 
 that he was to have a certain amount per ton until his $25,000 
 was returned, and that the lease was put up as collateral security 
 for that. Barton and he then had some words about this not 
 coming out at the time the agreement was made. 
 
The Stenographic Miscellany. 
 
 Mr. Kelly: I object to any conversation between Barton 
 and McKay, as not binding upon the defendant. 
 
 He said, "What did you sign that contract for, if you couldn't 
 iullil it?" He said he didn't know it was in the contract. Bar- 
 ton said, "What did you suppose we wanted the contract for. if 
 we couldn't have the lease?" That was about all. It was re- 
 peated several times. 
 
 Q. Do you recall anything further that was said during the 
 <jonversation? A. I made the remark that that was the most im- 
 portant part of the thing, because in case of any physical or fi- 
 nancial difficulty happening to him. we wanted to be in a position 
 to go on and fulfill the terms of the lease, so as to make the 
 road valuable. He said he couldn't put up the lease, and that 
 that was all there was of it. 
 
 Q. Was it said at that time, by McKay to Barton, in words or 
 substance, that Barton had no interest in the contract ? 
 
 Objected to, as leading. Received; exception. 
 
 A. Yes, sir, that was mentioned. McKay said Barton had no 
 right in the lease. 
 
 Q. And no interest in this contract? A. That he had no right 
 in the lease, or in the stock of the railroad that was to be organ- 
 ized, of which I was to have one-half and Barton and McKay were 
 ach to get a quarter. 
 
 Q. 1 understood you to say, you had the same talk at the time 
 of the execution of the contract, as you had at the interview in 
 the hotel? A. We did. 
 
 Q. Was there any further talk at that time? A. Xot that I 
 remember. 
 
 Q. When was your next talk on this subject? A. We arranged 
 for a meeting at the Astor House on the next day. McKay and 
 Barton and Clifford and myself were there at that time. 
 
 Q. What occurred? A. McKay repeated the same thing that 
 it was not possible for him to put up this lease. He said he had 
 sold a quarter interest in the property for $25,000, and the man 
 was to repay that amount at so much a ton of ore shipped, and 
 that the lease was security for the fulfilment of that contract. 
 
 Q. What was said, in response to that? A. We went over the 
 same ground as to why he had not said that at the time the con- 
 tract was signed that it was a very important part of it, in the 
 event of his getting into any difficulty, that we might go on and 
 fultill what he had undertaken to do in order to get freight for 
 the road. Barton said to him, "Why didn't you tell us this, at tho 
 time the contract was made, and save us all this trouble?" 
 
Key to Law Report. 
 
 Q. Was there any offer at that time to fulfill the agreement? 
 A. No, sir. 
 
 Q. That was the last talk that you had with McKay, before the 
 time of the commencement of this action ? A. Yes, sir. 
 
 Q. Describe the amount of the loss you have sustained by rea- 
 son of the contract not having been carried out, giving the details ? 
 
 Objected to, as immaterial, incompetent and irrelevant, 
 and not the proper method of establishing the measure 
 of damages. 
 
 Ov erruled ; exception. 
 
 Q. State what the profits of the enterprise would have been, if 
 you can so state, if the contract had been carried out and the road 
 had been constructed? 
 
 Objected to, as before. 
 
 Q. Do you know the cost of the operation of a railroad of this 
 kind, during the last six months, and at all times? A. I have 
 had experience in that, and 
 
 Q. What experience have you had in regard to the cost of oper- 
 ating a railroad? A. For a number of years I have been super- 
 intendent of a railroad, and I have had charge of operating other 
 roads. 
 
 Objected to, upon the ground that the witness was not 
 shown to be qualified to answer. 
 
 Q. Who did? A. McKay and I. I know that to be the fact. 
 On the basis of the contract, of eighty tons a day, at sixty cents 
 a ton, the receipts would be $48 a day, or $1,248 a month of 
 twenty-six working days. The contract provided that one-half of 
 those receipts should be paid to the trustee of the mortgage, to- 
 ward retiring the bonds. The contract next provides that we 
 should get nothing out of it until the bonds were paid. If we 
 take one-half of the guaranteed receipts, that would be $624 a 
 month. The balance, after deducting the cost of operation, would 
 be $224, or a total of 
 
 Objected to. 
 
 Q. What was included in the operation of the road? A. An 
 engineer and two men and the coal ; and as they expected to make 
 only two trips a day, over the road, the balance of their time they 
 could spend in working along the road. 
 
 Q. In making this calculation, of the cost of operation, you 
 took into consideration the expense of the engineer and fireman? 
 
82 Thi! Stenographic Miscellany. 
 
 A. We intended to put on a ten-ton engine, as the grade was down 
 all the way from the mine. 
 
 Q. Do you say that within your experience the amount you 
 have given us would thoroughly cover the expense of operation? 
 A. Yes, sir. We deducted $400 from the other half of the earn- 
 ings, and it made a total of $848 that would go to the retirement 
 of the bonds. 
 
 All this evidence was taken under the objection and excep- 
 tion of the defendant's counsel. 
 
 At this rate, both the principal and interest on the bonds would 
 be paid in two and a half years. 
 
 Q. What was the length of time that this agreement was to 
 run? A. Ten years from its date. 
 
 Q. How much time had expired on the lease, at the time of the 
 making of the contract? A. About one year. 
 
 Q. Now, go on. A. Under the contract, I was to have one-half 
 the stock of the road, and would be entitled to one-half of the 
 earnings after the bonds were retired. 
 
 Q. The contract provided for the amount of money that was to 
 be expended by the parties in the construction of the road? A. 
 Yes, sir. 
 
 Q. What would have been the value, within your experience, of 
 this road, constructed according to the terms and outlines of this 
 contract, at the time of its completion? A. $16,000. 
 
 Q. Under the contract, you were to have a half interest in that 
 road? A. Yes, sir. 
 
 Q. Go on with your computation. A. The McKay lease was 
 for ten years. One year had expired when the contract was made. 
 The lease would have run three and a half years before I should 
 have had any revenue from my ownership. During the balance of 
 the term of the lease, I should have one-half of the receipts, after 
 the payment of expenses. 
 
 Q. What do you compute that amount at? A. For the six 
 years and a half, $15,000. 
 
 Q. What do you say, as to whether there would have been op- 
 portunity for further shipment than the eighty tons provided for 
 in the contract? 
 
 Objected to. 
 
 Q. What was the length of this road? A. Approximately, 
 three miles. 
 
Key to Law Report. 83 
 
 To Mr. Kelly: 
 
 Q. How much do you figure that the expense of running the 
 road would be ? A. Fifteen dollars a day. 
 
 Q. How much would you pay the engineer? A. About two dol- 
 lars a day. 
 
 Q. How much would you pay the two men? A. About three 
 dollars. 
 
 Q. How much for the coal? A. McKay and I estimated 
 
 Q. What were the other items that go to make up your damage 
 of $30,000 ? A. When the bonds were retired, I would own one- 
 half the road, which would be $8,000. If the shipments did not 
 increase, the rate of freight decreased after the bonds were paid, 
 from sixty to twenty-five cents a ton for the paper company's 
 shipments, and fifty cents for McKay's shipments, would make an 
 average of $200 a month for my share of the net earnings for six 
 and a half years, the unexpired term of the lease. 
 
 Q. You claim that you were damaged in $15,000. A. I should 
 still have owned one-half of the road. 
 
 Q. That would make $23,000? A. Yes, sir, but it was under- 
 stood at that time that the capacity of the mills would be in- 
 creased, and every assurance was given that the shipments would 
 be increased also. 
 
 Q. You base your balance of $30,000 purely upon the increased 
 shipments and the increase in the capacity of the mills? A. 
 From Mr. McKay's assurance that they would be. 
 
 Q. When did you first see McKay? A. On the 28th of July. 
 
 Q. How did you come to meet him? A. Through Mr. Barton. 
 
 Q. it is a fact that Barton took you up there to meet McKay, 
 and introduced you as a promoter, for you to get capital to build 
 the road? A. Xo, sir. I went by myself, and met them. 
 
 Q. You didn't know McKay, until you were introduced by Bar- 
 ton ? A. Xo, sir. 
 
 Q. You went up there for that purpose? A. I went to look it 
 over, before bringing it to the attention of capitalists. 
 
 Q. Other than this one time, did you ever see that mine? A. I 
 saw it the first time I saw McKay. 
 
 Q. How many times have you seen it? A. Twice. 
 
 Q. When was the second time? A. The day we made the 
 contract. 
 
 Q. Were you ever interested in this kind of business before? 
 A. Yes, sir. 
 
 Q. Where were you interested in it ? A. Mineral City, Va. 
 
 Q. Do you remember whether or not there were any interline- 
 ations in the original contract that you made? A. Yes, sir. 
 
84 The Stenographic Miscellany. 
 
 Q. It was pretty well filled with interlineations? A. As I re- 
 member it, it was drawn on yellow paper, and had interlineations. 
 
 Q. Was every interlineation signed? A. Yes, sir, all \ve could 
 find were initialled by the attorney. 
 
 Q. After this letter of August third was received by you from 
 the defendant, did you reply to him? A. Yes, sir. 
 
 Q. Is this the letter that you sent to Mr. McKay? A. Yes. -ir. 
 
 (.}. After you received that letter, did you have any knowledge 
 as to whether he was doing any work under the contract? A. I 
 had not. When he said the deal was off, I supposed it was 
 stopped. 
 
 Q. Is it not a fact that McKay told you on September tenth 
 that he could not assign that lease to you because it had been as- 
 signed as collateral security for a loan? A. No, sir, he did not; 
 it is as I have stated. 
 
 Q. Didn't you and Clifford and Barton and McKay agree at 
 that time that this clause with reference to his assigning the 
 lease should be waived? A. Xo, sir. Xo such agreement ever 
 took place. 
 
 Q. Didn't he deliver to you a copy of his lease of the mineral 
 lands? A. I think he did* 
 
 Q. Do you know whether Clifford ever had a copy of it? A. Wo 
 were not satisfied that it was a copy of it. We had considerable 
 doubt about that. 
 
 Q. Do you know whether a copy of it was delivered to Clifford ? 
 A. I do not. 
 
 Q. This railroad was to be narrow gauge? A. Yes, sir. 
 
 The plaintiff here rested. 
 
 Mr. Kelly moved for a dismissal of the complaint, upon the 
 grounds : 
 
 1. That it nowhere appeared in the case that the plaintiff 
 
 had done anything under the terms of the contract to- 
 ward carrying out his part of it. and that he was 
 therefore in no position to maintain the action. 
 
 2. That it appeared that Barton was one of the parties to 
 
 the contract and that although he had no interest in 
 the lease he should have been made a party to the 
 action. 
 
 3. That the plaintiff had not furnished proof sufficient to 
 
 establish his cause of action. 
 
 Denied; exception. 
 
Key to Law Report. 
 
 The Court charged the jury, as follows: 
 
 Gentlemen of the jury: On the 27th day of August last, the 
 defendant in this action was the possessor of a lease of certain 
 mining privileges in Wayne county. The mine was distant from 
 the nearest railroad point some three miles. On that day, a con- 
 tract was entered into between the defendant and one Barton, par- 
 ties of the first part, Mr. Clifford, party of the third part, and the 
 plaintiff as party of the second part; and by the terms of that 
 contract it was provided that the party of the first part should 
 organize a railroad corporation, and that Clifford, if, after an 
 examination of the lease and of the minerals the same were found 
 satisfactory to him, should provide funds not to exceed the sum 
 of $20,000 for the construction of this road, for which Clifford 
 was to receive bonds of the road, secured by a mortgage upon its 
 property, to the amount of $30,000. The parties of the first part 
 agreed to transfer and assign the lease held by the .defendant for 
 the mining privileges to a trustee to be named in the mortgage 
 and also agreed, for the sum of $7,500 to be advanced to them by 
 Clifford, to provide rights of way, grade, and lay ties and rails 
 over the same, and to construct a suitable bridge across the river 
 which was to be crossed by the railroad, payments to be made as 
 the work progressed. 
 
 Three days after the execution of this contract, the defendant 
 informed the plaintiff by letter that the agreement was off, ow- 
 ing to certain conditions which he mentioned and to which your 
 attention has been called by counsel. 
 
 The plaintiff brings this action to recover damages which he 
 claims to have sustained by reason of a breach of the agreement 
 on the part of the defendant. You have heard the testimony, and 
 have listened to the arguments of counsel, and it is unnecessary 
 that I should call your attention further to the evidence. The 
 questions for your consideration are, whether there has been a 
 breach of the contract by the defendant, and if so what amount 
 of damage has been suffered by the plaintiff. 
 
 The plaintiff says that after the receipt of this letter from the 
 defendant, the parties to the agreement had a meeting in New 
 York, and that at that meeting the defendant declined to go on 
 and construct the road. He has introduced evidence of a letter 
 written by Clifford in which Clifford asked the defendant to per- 
 form his part of the agreement so that he could fulfill on his part. 
 The part that Clifford wished him to perform at that time, was 
 to deliver to him a copy of this lease. The defendant says he did 
 this immediately upon his return home. He has given evidence 
 tending to show that after the receipt of that copy by Clifford, 
 Clifford declined to advance the money. You remember that in 
 
85 The Stenographic Miscellany. 
 
 the contract Clifford had the option whether to advance the money 
 after an examination of the lease and the minerals. Of course, 
 the defendant could not be expected to purchase the right of \vay, 
 or to buy rails and lay ties, until money was provided for that 
 purpose. If Clifford was ready and willing to advance the money, 
 and still the defendant failed to do it, that was quite a different 
 thing. If it is true that after an examination of the lease Clif- 
 ford did decline to advance money with which the defendant 
 might perform his part of the contract, then you will have very 
 little difficulty in finding that the defendant was not respon- 
 sible for a breach of the contract. 
 
 A good deal has teen said in reference to the failure of the de- 
 fendant to assign this lease to the trustee. The mortgage was to 
 have teen executed by the corporation ; and there is no evidence 
 that any corporation was formed or that the mortgage was ever 
 executed, or that there was ever any trustee named. Of course, 
 until all these things were clone the defendant could not make 
 such a delivery. That would not excuse him for declining to de- 
 liver the lease, however, if he did decline ; and the testimony of 
 the defendant and Mr. Wilson will be considered upon this 
 question. 
 
 If you come to the conclusion, after a careful consideration of 
 the evidence, that there has been a breach of the contract on the 
 part of the defendant, your verdict will award to the plaintiff 
 such damages as he has sustained. He has testified that the 
 value of one-half of this road, that he would have been entitled 
 to under the contract after the indebtedness was paid, would be 
 $8,000. That is the amount .your verdict will state, if you find 
 in his favor, the court withdrawing from your consideration the 
 other items of damage which have been mentioned during the 
 trial of the case. 
 
 Take the case, gentlemen, and carefully consider each item of 
 evidence that has been given, giving to each part of the testimony 
 the weight to which you think it entitled, and render such a ver- 
 dict as in your judgment you think its importance demands. The 
 decision of every question of fact in the case rests with you, and 
 the responsibility of a correct finding rests with you and not with 
 the court. It would not be proper that I should express or inti- 
 mate any opinion as to what your finding should be, but your 
 verdict should be the expression of your own best judgment. 
 
 Mr. Carter asked the court to charge, that if the jury find 
 that the defendant did refuse to carry out his part of 
 the agreement, their verdict should be for the plaintiff. 
 
 So charged. 
 
Key to Law Report. 
 
 87 
 
 Mr. Carter excepted to the withdrawal by the court of the 
 other items of damage claimed. 
 
 The jury rendered a verdict for the plaintiff for $4,800. 
 
 Mr. Kelly asked the court to set aside the verdict, as con- 
 trary to the law and against the weight of the evi- 
 dence, and upon all the grounds stated in section 999 
 of the Code of Civil Procedure. 
 
 The motion was entertained, to be argued later. 
 
'>. BAKER 
 LAWYER 
 UALLAS, TEXAS 
 
UNIVERSITY ot 
 AT 
 
 LOS ANGELES 
 LIBRARY