25 Mo. App. 383 | Mo. Ct. App. | 1887
This cause has been before the supreme court and is found reported- in 82 Mo. 115. It was originally instituted before a justice of the peace, the verdict being for .defendant. On appeal to the circuit court defendant again prevailed, when the cause was appealed to the supreme court, where it was remanded on account of an improper instruction. It was again tried, defendant again obtaining a verdict, and plaintiffs appeal.
The only ground of complaint is as to the instruc.tions. Those for the plaintiffs told the jury that it was the duty of defendant to keep his scales in a condition to weigh correctly and to give plaintiffs correct weight.
The court, then, against the objections of plaintiffs,gave two instructions for defendant as follows:
“1. It devolves upon the plaintiffs to prove, to the satisfaction of the jury, that they paid defendant for the cattle in question more money than he was entitled to receive, according to contract, and unless this proof has been made, they must find for the defendant.”
“2. The jury are instructed that it devolves upon the plaintiffs to prove, by evidence, to the satisfaction*387 of the jury, that they paid to the defendant, by reason of the overweight of the cattle mentioned in the complaint, more money than he was entitled to receive for said cattle, and the amount of the over payment; and, in the absence of such proof, the finding must be for defendant.”
It is contended that the instructions for plaintiffs, stating it to be defendant’s duty to keep correct scales and give correct weight, threw the burden of proving that he did, in this instance, weigh correctly on defendant, ■and plaintiffs contend such to be the law. They, therefore, make two complaints against the instructions for ■defendant, first, that they erroneously declare the burden to be on plaintiffs, and second, that they are in conflict with those given for plaintiffs. We cannot agree to these views.. We do not believe the burden was on defendant to show that he gave correct weight, nor do we think plaintiffs’ .instructions can be fairly interpreted as so stating. They state it was his duty to give correct weight, but this no more puts the burden on him to prove it, than would an instruction, in assumpsit, that it was the defendant’s duty to pay his debts, would place the burden on him of proving he did not owe the sum claimed. The instructions for defendant were correct. Plaintiffs’ cause of action was, that, by reason of defendant’s scales over weighing the cattle, they •overpaid him for them ; this is the effect of their statement and this they must prove.
■ We are satisfied the judgment should be affirmed, and, with the concurrence of the other judges, it is so •ordered.
