94· FEDERAL REPORTER.
cidal intent, remained on the defendant, and that it did notdevolve upon the pilliintiff to prove, by a preponderance' of evidence, that his death resulted from the accidental discharge .of the gun. It is furthe!" claimed on the .part of the plaintiff in error that the court should ba'Ve directed the jury to return a verdict for the defendant, on the ground that the death of the deceased should be treated as one "in violati(jn or attempted 'Violation of the criminal law." There ,are two answers to this point, either one of which is sufficient: First, the allegation of .the answer is not that Beck's death resulted from the viCllation or attempted violation of any criminal law of the state of Montana, but 'Only that at some indefinite time, "prior to said Beck taking his . own life, said Beck was attempting and did violate the criminal law of the state of Montana." In the next place, while the evidence showed that, very shottly prior to the time that he was killed, he was engaged in unlawful acts, it did not show with sufficient clearDel!lsthat he was so engaged at the time he met his death as tojustify,the court in taking the case from the jury. The judgment is atllrmed. !, '
, I' ·
Circuit. June. 5,
Qircult Court ,of Appeals,
, letters' introduced 111: eVidence by a plaintiff dn proof of the "j}0Iltract, RUed upon ,do not constitute In. tbemselves .a cwnpleted con,tract; mllJ;elynegotbttiops:w,ith a to a contract, and they are by oral testlqlOny;it Is p)."opel' to submit· to the jury the questlonwhether the contract alleged was in 'fact com'ple'ted, '
ESTAnitISB:'-QUESTION FOR JURY.
XQthe,Gi,rcuh Coriljt,j:}i,thEl DJstrict of Pep.,n,sylvani/t. :, .::", '' ; , Thomas Darlington, 'for! plaintllf,in terror. Jobn:G. tTohnson,f0r rdefendanHn error.: a.1ldDA:Liu\'S,' Ojrcuit TOJiit'Di!:itclH'J'udge. "--'::'.' .. : . . ' ,'"
and BlJFFING'.' . ,(",:
nA'Lt'jAS;OircuitJ'udge. errors have been assigned in this case, but it is not nece8Elarjr'to consi'der them in , The brief .on belHllt the plaiJ;J,tin: .in error presents its actuaLconte,ntion ' ill'four pGint8." 'The'fiJ:81i' an&second of these points rest upon the as'sertion that'lf;he inholding.that·certain' letters iii.,> f#.lfl1i '11.i d Mt.. of t.b. . . c.ons.titute it QQmplete,c91Jlt",act.U they, dig' not,.the was (l1early rightin,8ubmitting totooiijury whether,:uponAhe whole ,matter, the contract alleged. and sued upon had in fact been completed. The poconoket;'2SU.S. App.froOj::t7 C.C. A.309, 70 Fed. '640., ',We have cahHully' theSe letters; and :find in thetll nothing 'but negotiations hQvHfg ,a cotitract: prospectively in view. From; them' alone: it would be any Perfect agreement. <iTbey do notdistllok; a 'fb11 andfilfial: meeting 61' theinlindsof' the ,parties. If there was. Ii e(mtract,it was partly: in writing and partly 'oral.
TOWN OF GREENBURG V. IN'l'ERNATI'oNAL TRUST CO.
Consequ'entlythe court below committed no errOr in declining to hold, as, by !Several of the plaintiff's points it wal> requested to do, that a contraetexclusively in writing had been ,established. The plaintiff, indeed, was not willing to rest its proof of contract upon the letters merely; for it intrqduced supplementary testimony, which, if the letters had constituted a complete contract, would both superfluous and irrelevant. The complaint made of the action of the trial judge in declining to instruct the jury that, in the absence ofa plea of accord and satisfaction, "the alleged transaction of January 22d, as to a settlement ,on that day, cannot be considered by the jury in that light," is not well founded. The testimony relating to this transaction was received without objection, and there was some cross-examination with respect'to it. In oilr opinion, the court would not have been justified in directing the jury as the plaintiff requested. What it did say was, we think, entirely proper and appropriate, viz.:
"I may say, powever, respecting this, that I have been more inclined to regard the evidence beard on this" SUbject as bearing on the question whether the plaintiff at that time believed it had such a claim as it now sets up,-in other words, 'whether the claim is an afterthought.-than as evidence of a settlement of the claim made here. The parties were ,at that time settling an old account, and they introduced into it the cost of putting in the electric light and preparing the office for this business. They made no such claim then as is now set up, so far as my memory of the testimony goes.--,though I leave it to you,-nor uutil this suit was brought. You have heard the testimony of the witnesses respecting what was said upon that occasion. The defendant sets it up as evithat this matter was called up, and that any claim the plaintiff had against the defendant on account of what had taken plaCe was settled. I rep('at to, you that I have regarded it, not SO much as evidence of such a settlement: as evidence bearing upon the question whether the, plaintiff then at that, timebeUeved it had such a claim,-believed that the contract now set up existed,-or whether this claim was an afterthought. You have heard the defendant's testimony in answer to the plaintiff's on this subject, and must determine, from a fair consideration of it, and of all that is before you, what weight should be attached to it." '
The fourth point submitted by the plaintiff in error, that ''the verdict was against the evidence," presents no question which is properly for consideration by this court. The judgment is affirmed.
I1\'TERNATIONAI, TRUST CO. 25, 1899.)
(Circuit Court of Appeals, Second Circuit.
HIGHWAYS-DETERMINATION OF NECESSITY 1;ORK 8TA'l'UTE. BY
COURTS-VALIDITY OF .NEW
Laws N. Y. 189'2, c. 493, providing for the extending of highways in one town into or through other tOWns in the same county, was not in violation of the state constitution because it conferred on certain courts of the state tbe power to determine the or expediency of such extensions. the highest court of the state having upheld the exercise of such powers by the courts in numerous analogous cases. arising under the same cbnstltution.