Illinois Steel Bridge Co. v. Wayland

The opinion of the court was delivered by Johnston, C. J.: This was an action by the Illinois Steel Bridge company against W. C. Wayland to recover $410.00, a balance alleged to be due on the sale of four bridges. A verdict for the amount claimed was returned by the jury, but upon the motion of the defendant the court granted a new trial, and of this ruling complaint is made. In its petition plaintiff alleged that the defendant had purchased four bridges, two of them being of a 50-foot span at $811.00 each, and two of 30-foot span at $411.00 each; that defendant had paid for all of them except one of the 30-foot bridges for which he still owed $410.00. In his answer the defendant admitted the purchase of the four bridges at the prices named and alleged that he had fully paid for them. He pleaded that he was unable to give the date of each payment made, but that in July, 1917, he received a letter from plaintiff demand [533] ing $416.01 which it claimed was the balance due upon the bridges; that he immediately sent his check for that amount on which was written “paid in full for bridge steel,- for Washington county, Kansas,” which check the plaintiff cashed, and in a letter acknowledged the receipt of the check, and that it was payment in full of the balance due on the account. Plaintiff .in its reply admitted the cashing of the check and the delivery of the receipt in full, but alleged that it occurred through a mistake, in that plaintiff had the impression that one of the smaller bridges was to be paid for by Washington county, and therefore it had entered a charge of $410.00 against that county, that the other three bridges, together with some rivets purchased by defendant, were charged to defendant, and that the $416.01 was the balance of the charges made against defendant as the account was kept, but that it afterwards learned that the county was not under obligation to pay for the fourth bridge. That item, it is alleged, should have been charged to the defendant, which he had never paid, and the receipt in full was given through this mistake. On the motion for a new trial it was contended by the defendant that the court erroneously placed the burden of proof upon him as to payment of the balance claimed, and especially as to the matter pleaded relating to the mistake made in -the giving pf the receipt. The new trial was granted, as the court stated, upon the ground, “that the instructions placing the burden of proof upon the defendant to prove the allegation of payment, are wrong.” The defendant insists that the reply setting out the receipt acknowledging payment in full and explaining that it was made through a mistake was matter in avoidance and that the burden of sustaining that allegation rested upon the plaintiff. He cites Meeh v. Railway Co. 61 Kan. 630, 60 Pac. 319; Knox v. Pearson, 64 Kan. 711, 68 Pac. 613; Cottom v. Insurance Co., 65 Kan. 511, 70 Pac. 357; 30 Cyc. 1226. The view of the court is that no error was committed in imposing the burden of proof of payment on the defendant. It was admitted that he purchased and received the four bridges at the prices named and was responsible for the price of all of them. He alleged that full payment of the price had been made, and it is conceded that the burden of proving payment [534] is ordinarily upon the one who alleges it. It is held by the court that the matter of the receipt was only an incident of the payment which the defendant was required to establish by his evidence. Payment was an affirmative fact and the main issue in the case, and proof of it was vital to the only defense advanced by the defendant. The receipt and letter of acknowledgment were only items of evidence tending to show the leading fact of payment, and the burden of establishing the defense did not shift from one side to the other as the trial progressed but rested upon the defendant throughout the trial. (Mitchell v. Mitchell, 18 Weekly Notes of Cases [Pa.], 439; Shrader v. U. S. Glass Co., 179 Pa. St. 623; Terryberry v. Woods, 69 Vt. 94.) The mistake in the giving of a receipt is not to be treated as matter of avoidance which changes the burden of proof. The production of the receipt may have shifted the weight of the evidence, but it did not shift the burden of proof of payment. In Terryberry v. Woods, supra, the defendant alleged payment of a claim and introduced a receipt as evidence of payment. He asked the court to charge the jury that the receipt was prima facie proof of payment and that the burden was upon the plaintiff to show that she had not received the amount mentioned in the receipt. This request was refused and the supreme court of Vermont approved the ruling, saying: “The burden of proving an allegation remains with the party making it. The weight of evidence may vary from side to side as the trial proceeds, but the burden of proof never shifts.” (Syl.) In instructing the jury the court did not overlook the evidential effect of a receipt. The jury were told that: “A check marked ‘payment in full’ followed by a letter acknowledging the receipt of the check as payment in full is prima facie evidence of payment in full, yet it is not conclusive and is always open to explanation.” The court further instructing on the same subject said: “If you find from the evidence, by a preponderance thereof, that the acknowledgment of payment in full in this case was erroneous and made by mistake, you are not concluded by the fact that payment in full was acknowledged, but may find for the plaintiff if you find that said acknowledgment of payment was erroneous, and that the defendant is still indebted to the plaintiff. But on the contrary, if you find from the evidence by a preponderance thereof, that the payment in question was payment [535] in full and that said acknowledgment of payment was not made erroneously, then your verdict should be for the defendant.” By these instructions the jury were advised as to the effect of the receipt which the defendant had offered in an effort to prove payment. The issue of whether payment had in fact been made was to be determined not upon the evidence of the receipt alone, but upon all the evidence of both parties, and it is the view of the court that upon the issue of payment the burden still rested upon the defendant, and that no error was committed in giving the instruction that: “The defendant having pleaded payment, the burden of proof is upon him to prove the alleged payment by a preponderance of the evidence.” It is concluded that the court erred in granting a new trial on the ground assigned, and therefore the order is reversed with directions to enter judgment for plaintiff upon the verdict of the jury.