Page:Dakota Territory Reports.djvu/29

 producing a book of acconnts weakens Waldron's testimony.

3. The rule is that admissions are the weakest kind of evidence, as being liable to be misunderstood or misstated.

All of which were objected to by defendant's attorney, for the following reasons:

As to the first request, it is correct, so far as it goes; but the court desires to add: that to make a contract valid, the minds of the parties thereto should meet. Now, if you should find that the parties did not agree in relation to what the plaintiff should do for the defendant, and what the defendant should do in payment therefor, there was no binding contract made, and the parties can each recover of the other in this action, for the items charged, in connection with the supposed contract, such sum as each reasonably deserves to receive for the same, as you may find from a fair balance of the testimony in relation to each of said items.

As to the second and third requests: The court stated to the jury that such is the law—that the disposing of offices in this manner is against sound policy—that the man who has it in his power to bestow official patronage, should do so without being influenced by any pecuniary consideration; and the court further charged them, that if they should find the contract void, neither party would be precluded from recovering of the other party, as he had before stated to them in relation to the first request.

As to the additional requests of the plaintiff: As to the first the court charged, it is correct so far as it goes, but in addition he said to them if you find, as there is testimony tending to prove that the carpenter work was settled, and so understood by both parties, then it could not be recovered in this action, and the plaintiff will start anew on the balance of $79.10, or $78.50, or on such balance as the parties agreed upon was due under the settlement of September 2d, 1865, which you will consider, and such other items as may have been omitted by mistake, or kept open by mutual agreement of the parties for further consideration.

As to the second: The court charged that books of parties may be strongly corroborative of the testimony of the party