Page:Federal Reporter, 1st Series, Volume 8.djvu/803

OABIiB y. PAINE. 789 �Welson, D. J. This is a suit to recover damages on a contract to sell logs. The contract was made and signed in the name of the defend- ants by one Idison, who is alleged to have been the duly authorized agent of the defendants to sign such contract. The defendants deuy that Idison had any such authority to make or sign the contract, and they also further aver that the cuntract was signed with the under- standing that if not satisfactory to the defendants it should be called ofF. �The defendants C. N. Paine & Go. were engaged in the manu- facture of pine lumber, flooring, doora, sash^ and shingles, and sawed lumber, at Oshkosh, in the state of Wisconsin. They also had a inill at Merrillon, in that state, and a lumber-yard in the state of Nebraska. Idison was their traveling agent, and there is evidence tending to show that he was selling, outside of the state of Wisconsin, materials, flooring, finishing lumber, as it is called, and also evidence tending to show that he had purchased from Hornby & Cable, on several occasions, sawed lumber and lumber manufactured by them, and that Paine & Co. had paid for the lumber sd purchased by Idison. Previous to April 2, 1877, in the latter part of March, Idison was in Davenport, in communication with the plaintiffs, and the resuit was that he signed to the contract for the sale of logs, and which was offered in evidence, the name of C. N. Paine & Co. The authority of Idison was the chief issue, and the jury rendered a verdict for the defendants. �A motion is made for a new trial. The errors of the charge are urged by counsel to be : First, in stating that — " There is a raie which will guide a jury in weighing and giving effect to evi- dence, and aid them to reconcile evidence which is contradictory and conflict^ ing. It is this: Where there are witnesses in the case of equal intelligence, and with equal opportunities of knowledge of the facts.some of whom testify to acts done, and conversations and declarations had, giving in detail a full account of such acts, conversations, or declarations occurring in their pres- ence, or done or uttered by them ; and others, who testify that they have no recollection that such acts were done, or conversations or declarations uttered — the affirmative testimony is, or ought to be, of greater weight in the minds of the jury than the negative testimony. To reject the affirmative testimony you will determine that the witnesses manufactured the evidence which they have given ; while, in the other case, the want of recollection that such acts were done, or such conversations or declarations were uttered, may be attrib- uted to the infirmaties of the human mind. I do not say that this rule is to be followed by juries without deviation ; but it may be applied." �It was proper for the court to give this instruction; the rule is ele- mentary, and is thus stated by Starkie on Evidence, vol. 1, p. 578; ��� �