Lonergan v. Peck

Devens, J. The question here is not as to the weight of the evidence, but whether there was any evidence sufficient to be submitted to the jury. The error in the contention of the defendant is, that he treats the affirmative of the case and the burden of proof, in the posture in which it was when submitted to the jury, as on the plaintiff. There was no dispute that the plaintiff had deposited with the defendant certain moneys, to be employed in the purchase and sale of stocks and bonds. He contended that all the purchases [364] and sales reported to have been made were fictitious, but he sought to recover of the defendant the profits which appeared to have been made, and the balances apparently due on account of a portion of these alleged fictitious transactions; but the court instructed the jury, that, if they were fictitious, he could recover for no part of them, but only his cash payments and interest thereon. The delivery of the moneys being undisputed, the burden of proof was on the defendant to show that he had honestly made transactions in the purchase and sale of stocks as ordered, and thus that he was not responsible for the moneys of the plaintiff, as the losses in them, according to his account, exceeded the moneys deposited and the gains by the sum of $284. The case had been referred to an auditor, whose report was favorable to the defendant. This report was prima facie evidence for the defendant, but it did not change the burden of proof, which was still on him to show that he did purchase and sell the bonds and stocks as ordered by the plaintiff. Morgan v. Morse, 13 Gray, 150. An affirmative proposition is certainly not to be established without some testimony in its support. If one who has the burden of proof calls the opposing party to testify to a contract, the existence of which he asserts, the denial of such party, even if disbelieved, would not affirmatively prove that which his testimony negatives. Markey v. Mutual Benefit Ins. Co. 103 Mass. 78. Proctor v. Whitcomb, 134 Mass. 428. If we take the converse of such a case, and assume that the party having the burden of proof has called a witness who is disbelieved, or whose testimony is controlled, it is obvious that he has not established that which he undertook, even if his positive evidence may have been met by negative evidence only. In Shaw v. Hall, 134 Mass. 103, the plaintiff sought to show that one Golden, with whom he had made the transaction which was in controversy, was the agent of the defendant. It was held that the fabrication of a letter, wrongly dated to convey a false impression of a telegram assigning a false reason for not completing the contract, and a large gift unexplained to Golden, did not afford affirmative evidence of the agency of Golden, or make out that part of the plaintiff’s case which was there essential. It was, however, recognized that such evidence would [365] be of great importance in controlling the testimony of the defendant and of Golden. Had it been necessary for the defendant to establish that Golden was not his agent, such evidence would have been relevant to the issue, and might have been sufficient to prevent the defendant from maintaining it. In an action for labor and services rendered, if the auditor had reported that such labor and services were rendered at a particular time and place, the evidence afforded by the report would be met, and, if sufficient in weight and accuracy, controlled, by the testimony of witnesses who were present at the time and place stated, and who would testify that no such labor and services were rendered. Under the ruling of the court, as the plaintiff could not recover for the profit of any particular transactions if they were fictitious, all that was left for consideration was whether the transactions were as ordered by the plaintiff. The receipt of the moneys being admitted or proved, it was for the defendant to show this. Upon this point, the auditor’s report was in favor of the defendant; but this could be met by showing conduct inconsistent with such a finding on the part of the defendant, and its effect would be thereby diminished or destroyed. It cannot be said that it was not thus met, when it was shown by the defendant’s own testimony that one transaction at least consisted of a transfer of his own stocks by the defendant, and not a purchase, and when in all of seventy instances, although he testified that the transactions took place, he failed to show where or of whom he bought or to whom he sold, or to develop any circumstances which might make it possible to investigate his transactions, if they had an actual existence. Exceptions overruled.