Ferguson v. Willig

Johnston, J. It is earnestly contended that the testimony does not sustain the verdict and judgment, but, as the record fails to affirmatively show that all the testimony is preserved, that question is not open for examination. No statement is found in the case-made to the effect that it contains all the evidence; and although it is claimed that the recitals at the opening and closing of the testimony for each party furnished an equivalent of the statement, there are several breaks in the continuity of the testimony, so we cannot say that other witnesses were not examined or other testimony may not have been received. It cannot be presumed that all the evidence is preserved. That fact must affirmatively appear from a fair construction of the record. Moody v. Arthur, 16 Kan. 419; Greenwood v. Bean, 20 id. 240; Winstead v. Standeford, 21 id. 270. [458] 1. Alleged misrepresentations denied, burden of proof. [457] Willig testified that he was not informed about the $17,000 mortgage, and had no knowledge of its existence until he went to the Lombard Investment Company in the early part of April, 1891. He states that he went there with a view of making an interest payment on the mortgage debt against the lots, and that he was then told of the existence of the mortgage and that payments could only be made as the mortgage stipulated. He did not then nor at any time afterward offer to pay the $1,216.65 mortgage debt that was mentioned in the. deed and which he had assumed as a part of the consideration for- the lots. On the other hand, Ferguson testifies that he explained to him the character of the incumbrance, and the manner in which a lot could be released by paying a proportionate share of the mortgage debt, substantially as the release in the mortgage provides. The contract for [458] the exchange of properties provided that Ferguson should furnish to Willig an abstract of title. This was furnished, and upon its face it showed the $17,000 mortgage. Other witnesses testified that Willig examined the abstract, and spoke of the $17,000 mortgage and the manner in which lots could be released from its obligation. The mortgage itself, containing the release clause, was of record; and appended to the mortgage was the appraisement of the property, by 'which it appears that the proportionate share of the mortgage debt against the lots in controversy was exactly the amount of mortgage debt assumed by Willig and mentioned in the conveyance to him. There was testimony, too, from the managers of the Lombard Investment Company that Willig had never proposed to pay his share of the mortgage debt, and that if he had tendered the same it would have been accepted and the lots would have been released from the mortgage. In this state of testimony an instruction was given that “the burden of proof is upon the plaintiff in this action, and he must make out his case by the preponderance of the evidence ; but where the defendant attempts to show knowledge by plaintiff of the existence of the $17,000 mortgage he must show this by the greater weight or preponderance of the evidence. ’ ’ In this we think th ere was error. The plaintiff asked a rescission on account of misrepresentation and concealment concerning the $17,000 mortgage. It was the principal fact in the case, and the burden of proving it was upon him. He avers and insists that the character and amount of the mortgage were misstated to or withheld from him by the defendant below. If he was correctly informed, as much of the evidence tends to show, he has failed [459] to support the main fact in the case and the one which is essential to a recovery. The alleged fraud depended upon whether he was informed or misinformed about this mortgage ; and this fact was necessarily involved in the issue which he tendered. He held the affirmative of the issue, and if no proof had been offered to sustain it his action must have failed. He who alleges that a transaction is fraudulent takes upon himself the burden of proving every necessary element of the fraud. If the defendant conceded the misrepresentation, and claimed that the plaintiff had full knowledge of the fraud and had therefore acquiesced in or waived it, it might well be argued that the burden of showing the knowledge would rest upon the defendant. In this case, however, the misrepresentations constitute the fraud relied upon by the plaintiff; and the matter of whether he was misinformed and deceived is an essential feature of his case. The mortgage itself was a matter of public record and revealed its own character. He had possession of an abstract which pointed ■out the existence of the mortgage ; and in view of the nature of the action and the issue which he tendered, the burden of showing the deception or that he was without knowledge of the mortgage was upon him. Other objections are argued, some of which might be deemed to be serious if we could say that all the -evidence in the case was before us, but owing to the -condition of the record we will not undertake to con.sider or decide them. For the error mentioned the judgment of the District Court will be reversed, and the cause remanded for a new trial. All the Justices concurring.