TAKEN FROM THE JURY
BECAUSE NO TENDER OF MONEY AND NOTE MADE.
An Agreement Forced Because a Jury Did Not Wish to Remain Out Over Night.
The jury in the case of C. J. Whitey vs. Alvin Wilsey agreed on a verdict last night about 8 o'clock after being informed that they would otherwise be kept out all night. But for this fact there would probably have been a disagreement. The verdict was no cause of action. Attorney A. J. Sawyer this morning asked for 30 days in which to move for a new trial and 30 days additional time in which to file a bill of exceptions.
The case of Libbie Welske vs. James McFadden which occupied the time of the court yesterday was continued today. The points in this case are as follows: The defendant purchased a horse and cow of the plaintiff, agreeing to pay therefor $107. He was to pay $50 for the cow and $57 for the horse payment to be in cash. On completing the bargain McFadden paid plaintiff $20 in cash and agreed to pay the balance on the delivery of the cow. When the cow was delivered defendant handed John Welske, husband and agent of plaintiff $17 in cash and a note of John Welske's for the balance. Welske at first refused the money and the note but later on finding he could not get the cow and horse took them. Later the plaintiff replevined the horse, the cow in the mean time having passed into other hands. A bond was given by plaintiff to return the horse and make good all damages in case the act of replevin was not held valid by the court.
Each side introduced its evidence and when they rested. Mr. Sawyer arose and stated that the defendant's side of the case had gone forward against his judgment but because the defendant desired it. He then asked the judge to direct a verdict for the defendant on the ground that the plaintiff before commencing the action should have offered to return the money and note which had been received from defendant which was not done. Mr. Lehman for the plaintiff claimed that the note was never accepted by plaintiff and that she had the right to apply the money on the price of the cow.
The court held that Mr. Sawyer's position was the law of the case and directed the jury to find for the defendant. This means that the horse must be returned to defendant. Mr. Lehman says the case will be carried up.