Page:Dakota Territory Reports.djvu/50

 dollars worth of timber was, after this sale, taken from a few acres of this land, and all agree it was a valuable timber lot.

We have no difficulty in determinatingdetermining [sic] that the evidence fully establishes the fact that the value of the land conveyed by the plaintiff to the defendants, was worth at least nine hundred dollars. But did the defendants agree to pay the plaintiff that sum for it? This is the most difficult feature of this case. Fraley swears that the defendants applied to him to purchase the land, and stated they wanted it to build a steam saw-mill upon; that he said to the defendants, "we needed a mill bad in the neighborhood, and for the sake of getting a mill I would let you have the land." They wanted to know how much h% would take for the land. He told them he was not willing to take less than one thousand dollars. They replied in substance, "I ought to take less for the purpose of having a good mill upon it." Now mark the language: They did not question the value of the land, or insist the price was too^ much; but urged the benefits to him by reason of the building of a good steam saw-mill. The witness says: "they then made me an offer of four hundred dollars in cash, one hundred dollars in lumber." I then asked them "when they would build the mill?" "they told me they would go right to work getting out the timber, and would have the mill completed in the spring of 1866," being the next spring. "I then said to them, if they would give me four hundred dollars in money, and complete the mill in 1866, and give me one hundred dollars worth of lumber, they could have the land." This proposition they accepted.

This testimony is strongly corroborated by Benton Fraley and Dr. Burleigh; and Burleigh, although called first by plaintiff, is recalled by defendants. This testimony is in part, and only in part, denied by the defendants.

The defendants swear they only agreed to pay four hundred dollars for the land, and that they did not agree to build the mill. But Mr. Bentley swears that the building of the mill was talked of between them, and that Fraley wanted the defendants to give a bond conditioned that they would build the mill; and this is inconsistent with the idea that they had