J. M. Robinson, Norton & Co. v. Tuscaloosa Mills

, SPIEEBY, Circuit Judge (after stating the facts as above). Many general rules have been announced on the subject of the burden of proof, intending to show on whom it lies. It is often announced that the burden is on the plaintiff, and, again, that it is on the party having the affirmative allegation. But an examination of the precedents will show1 that the burden is often on the defendant; and sometimes on one who has a negative assertion to prove. It may be truly said that the burden is on one to whose case the fact to be proved is essential, but that serves no purpose as a general rule, for it merely presents another question. It seems clear that there can be no general rule for all cases. In the courts it must always remain a question of policy and fairness based on experience in different situations. The solution of the question in each case must depend on its own pleadings and facts. Cases occur where, on the pleadings, no evidence being offered on either side, the plaintiff is entitled to judgment. . Such is the case where the plea admits the material averments of the complaint, such as are essential to the cause, of action, but accompanies the admission with a statement of affirmative matter by way of defense. In such case the burden of proving the new matter set up as a defense is, of course, upon the defendant. Proof of it is essential to his defense, and, neither side offering evidence, judg [970] ment on the pleadings should be entered for the plaintiff. Cook v. Guirkin, 119 N. C. 13, 25 S. E. 715. In the instant case, however, the plaintiff did not rest on the pleadings, and probably thought it not prudent to do so, as pleas other than the one containing the admissions had been filed. The plaintiff sues for $3,310.13, alleging that it paid that sum to the defendant for goods which the defendant was to manufacture and deliver to the plaintiff, and that the defendant failed to deliver the goods, and refuses to return the money. The plea that states the defendant’s only defense, as shown by the evidence offered, admits the receipt of the money, admits the agreement to manufacture and deliver goods for the money, and admits that the money has not been returned. These admissions are coupled with the affirmative defense that the goods were manufactured, set aside for the plaintiff, notice of the fact given plaintiff, and that subsequently, without defendant's fault, the goods were destroyed by fire. The real issue to be tried was the truth of the defensive statements in this plea. The plaintiff was in business in Kentucky. The defendant’s warehouse, where it claimed the goods were set aside and destroyed by fire, was in Alabama. The facts pleaded, if they existed, were clearly within the knowledge of the defendant and easily susceptible of proof by it; but it would not be practicable, if possible, for the plaintiff to prove the negative — that the goods were not set aside in performance of the contract. Proof of a fact, which, if true, rests within the knowledge of the defendant, and which it might be impossible for the plaintiff to prove, "lay upon defendant.’’ Borthwick v. Carruthers, 1 T. R. 648; Stewart v. Ashley, 34 Mich 183. Putting aside the suggestion that the plea admits the negative averment of the complaint — -that die defendant had not actually delivered to the plaintiff the goods for which the check was given — it seems that under the circumstances the burden would not be on the plaintiff to prove the negative averment. In United States v. Denver & R. G. R. R. Company, 191 U. S. 84, 92, 24 Sup. Ct. 33, 35, 48 L. Ed. 106, the court said: “When a negative is averred in pleading, or plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control .of each party, then the burden of proof is upon the party averring the negative; but when the opposite party must from the nature of the case himself be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party which is in possession of the proof should be required to adduce it. or, upon his failure to do so, we must presume it does not exist, which of itself establishes a negative.” When, with admissions made by the defendant, evidence offered by the plaintiff makes a prima facie case, the plaintiff may rest, and the burden is on the defendant to prove an affirmative defense. Lilienthal’s Tobacco v. United States, 97 U. S. 237, 266, 24 L. Ed. 901. The case turns on the question of the ownership of the 21 cases of goods when they were burned. Their loss must fall on the owner. The ownership depends on the issue as to whether or not they were marked and set aside for the plaintiff in performance of the agreement, [971] of which notice was given the plaintiff, and to which it impliedly assented. Evidence was offered by the defendant tending to sustain its contention on this issue. The plaintiff, on the contrary, offers evidence lending to show that it received no notice; and it relies on the correspondence as showing that up to a few days before the fire neither party considered that the 21 cases had been selected and applied to the contract, and that the defendant did not claim to have selected and appropriated any particular goods to the settlement of the contract of purchase. We do not wish to intimate any opinion upon the weight of the evidence further than to say that on the record before us the correspondence, explanations of it, and the other evidence presented a question for the jury. On this issue the burden of proof was on the defendant. This is so for three reasons: (a) The defendant makes the affirmative defensive allegation; (b) it relates to a matter especially within the defendant’s knowledge, the proof of which was necessary and essential to the defendant’s defense; and (c) the plaintiff had made proof of a prima facie case, which, if not admitted by the pleadings, was undisputed by the evidence, excepting, of course, ike evidence offered in support of the new matter pleaded. In Chicopee Bank v. Philadelphia Bank. 75 U. S. 641, 19 L. Ed. 422, Mr. Justice Xelson observed in commenting upon the refusal of the court below to charge as to which side the burden of proof belonged : “We think the court, after having submitted fairly the evidence on both sides bearing upon the question, had a right, in the exercise of its discretion, to refuse the request.” The opinion shows, however, that if the request had been granted —which was merely to instruct on the question of the burden of proof —the court, should have instructed that the burden was on the party making the request. He was, therefore, not injured, but benefited, by the refusal. That case is entirely different from the case at bar. It may be that in the instant case the court, having fairly submitted the issue to the jury, would have been acting within its discretionary power if it had refused to charge on the subject of the burden of ’proof, although generally the jury should he instructed on that subject, and it has been held that it is error to refuse on request to give a proper charge as to the burden of proof. Stevens v. Pendleton, 94 Mich. 405. 411, 53 N. W. 1108. .But the defendant was not content with the silence of the court on the subject, and, at its request, the jury were charged that the burden was on the plaintiff to prove to the reasonable satisfaction of the jury “that the defendant did not deliver the 21. cases of goods ior the price of which the plaintiff is suing.” And the court refused to charge, at the request of the plaintiff, that the burden of proof nas on the defendant to show that the goods were separated and set aside. These charges were not adted, nor would they be-understood by the jury to apply to the prima facie case made by the plaintiff. That was undisputed, except by the evidence offered in support of the new matter pleaded. The charges would be understood as applying lo the defensive averments of the plea. [972] We are of opinion that the giving of the defendant’s requested charge and the refusal of the charge asked by the plaintiff was error, in view of the pleadings and the evidence on which the issue was submitted to the jury. The judgment is reversed, and the cause remanded for a new trial.