| Superior Court of New Hampshire | Dec 15, 1852
The principal question presented by this case is upon the right, claimed by the defendant, to open the case to the jury, and, consequently, to make the closing argument. The question whether the plaintiff or the defendant has the right, almost necessarily arises at the commencement of the hearing, and before the court can have any opportunity to know any thing of the nature or character of the questions which are to arise upon the trial, except as they are disclosed by the pleadings. The right is, therefore, usually held to depend upon the state of the pleadings. “ The party who asserts the affirmative of the issue is entitled to begin and to reply.” 1 Green. Ev. § 74. “ If the record contains several issues, and the plaintiff holds the affirmative in any one of them, he is entitled to begin.” Ib.
This question was considered, and the cases collected and examined, in the case of Belknap v. Wendell, 1 Foster’s Rep. 175. Gilchrist, C. J. there lays down the rule thus“ The plaintiff begins and has the right of reply, in all cases where the defendant’s pleadings, or any part of them, deny the whole or any part of the plaintiff’s pleadings, so as to leave any affirmative allegation on his side to be established by proof.” “ And this (he says) is uniformly the case, unless the defendant, by the form of pleading, admits the plaintiff’s right of action, but for the cause which he sets up in his plea, no proof in such case being required on the part of the plaintiff.” This rule is in accordance with the practice in this State. We are not aware that there has ever been any difference of ruling in the common pleas, or of decisions in this court, or that any exception has ever been admitted in this respect.
This case comes clearly within the rule in Belknap v. Wendell, since the affirmative of one of the issues is upon the plaintiff. Two pleas are filed. The first is the general issue
The second plea alleges a tender as to seven dollars and ten cents. Upon this the burden of proof is upon the defendant. But it is suggested that as a plea of tender is an admission of the plaintiff’s cause of action, as set forth in his declaration, this has the effect, substantially, to change the issue upon the first plea. We do not so regard it. The right, by the rule in Belknap v. Wendell, depends upon the form of the pleading, and is determined by the fact that the affirmative of one of the issues is upon the plaintiff, and this is in no way affected by the circumstance that the plaintiff has greater or less facilities for making the required proof Any material fact may be proved by the admissions of the adverse party; and it does not change the burden of proof upon the pleadings, that the defendant has admitted the claim, which he formally denies by his plea. Nor is it in any way material in what form the admission is made, so long as he chooses to deny it upon the record, and join issue upon it.
The admission is evidence of a matter of fact, to be decided by the jury, and the plaintiff, to sustain his case, must lay that evidence before them. In this respect, the admission of the contract declared upon, implied from the payment of money into court, stands upon the same ground as the admission of the signature of a written instrument declared upon, resulting from a neglect to give notice upon the docket of the denial of such signature, according to the general rule of the court. In actions upon promissory notes, the proof of the signature of the instrument is all that the plaintiff is required to make, upon the general issue; and this is admitted under the rule by the want of notice of a
This question, substantially, arose in the case of Gump v. Smith, 11 N.H. 48" court="None" date_filed="1840-07-15" href="https://app.midpage.ai/document/bump-v-smith-8504384?utm_source=webapp" opinion_id="8504384">11 N. H. Rep. 48. The general issue was pleaded, with a brief statement. A fact, necessary to be proved by the plaintiff, was admitted by the statement. But the court held that the general issue imposes upon the plaintiff the burthen of making out his whole case, before the matter of the brief statement comes in issue at all; and the same, the court say, is the result where special pleas are pleaded with the general issue. This decision is but a recognition of the common principle, that where several pleadings are filed, they are to be tried precisely as if each was pleaded alone; and the admissions, expressed or implied, in one plea, cannot be used as evidence against the party upon other issues. Cilley v. Jenness, 2 N. H. Rep. 89; Chapman v. Sloan, 2 N. H. Rep. 467.
The plea of tender is of course not evidence upon the general issue for any purpose, but the independent fact of the payment of money into court with the plea of tender, is an admission of the contract declared on ; but this fact is to be proved by the plaintiff, like any other admission. Upon the pleadings in such case, nothing appears which changes the ordinary effect of the general issue.
The question presents itself under an entirely different aspect from that it would have had, if the defendant, instead of pleading the general issue, had pleaded what seems to have been his true defence, either payment or a delivery and acceptance pro tanto of coal, of a different quality, and perhaps at a different place. In that case, the burden of proof upon both pleas would have been upon the defendant, and the right to begin and close, would have belonged to him. This would have been apparent at once upon the record, but upon the general issue, it cannot appear that the
The second point raised by the exception, as to the duty of the defendant to prove the defence of payment, if he relies upon it, is admitted by the defendant to have been correctly decided in itself; but it is insisted upon to show the incorrectness of the ruling as to the right to open and close. It surely could not be expected that the court would hold that the plaintiff was bound to prove the defendant’s plea, nor that it was to be taken for granted without proof, or the plaintiff required to disprove it. In our judgment, there was no inconsistency in holding that upon the pleadings, as they were drawn, the burden of proof was upon the plaintiff, and that he was, therefore, éntitled to begin and close; and in holding afterwards, when the plaintiff had taken upon himself his defence, that if the defendant relied not upon a denial of the plaintiff’s claim, but upon a discharge of that claim by new and independent facts, that the burden was upon him to prove his defence. This point was before the court in Belknap v. Wendell, where the court say, “ The burden of proof may shift during the trial. In a suit upon a written contract, the plaintiff produces his evidence, proves the signature of the defendant, and stops; the defendant then alleges payment, or other matter of defence; the burden of proof is upon him, and yet the plaintiff opens and closes the argument.”
The next exception relates to a variance. The court ruled that in consequence of the plea of tender, the defendant was not at liberty to allege a variance between the contract declared on and that shown in evidence. Both parties agree that a payment of money into court is an admission of the contract declared on, and we think the
It is usual to instruct the jury in actions founded on contracts, that they may allow interest, though none is stipulated in the contract, from the-time of default in the performance, and no just exception can be made to such an allowance by the jury.
The verdict should have been taken for the balance due, after deducting the amount paid into court; but it is a matter of course to allow the excess to be remitted, and the defect is thereby entirely remedied.
Judgment is to be rendered upon the verdict, when the plaintiff has remitted the amount objected to.