(after stating the facts). There was but *61one contract made between the parties. The coal was delivered under that contract. If the contract included one cargo, the plaintiff was entitled to recover. If the contract included more, and the plaintiff Had failed to perform it, then the plaintiff was entitled to recover for the coal delivered less what damages the defendant had sustained by reason of the plaintiff’s failure to perform. The defendant did not set up a claim in avoidance of an admitted contract. On the contrary, he denied that any such contract, as the plaintiff claims, was made. The sole issue to be tried was: What was the contract ? The onus was clearly upon the plaintiff. Berringer v. Iron Co., 41 Mich. 305; Homire v. Rodgers, 74 Iowa, 395. Cases like Dillon v. Pinch, 110 Mich. 149, have no application to the facts of this case. There the defendant had received, as agent of the plaintiff, the amount of a policy of insurance. The suit was brought to recover the amount of the insurance received by him. He pleaded the general issue with notice of set-off, claiming an agreement that he was to receive $530 for making the collection. There the defendant introduced a contract in avoidance of the plaintiff’s claim.
Judgment reversed, and new trial ordered.
Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.
