158 Mo. 323 | Mo. | 1900
This action by plaintiffs, as assignees of two accounts of T. N. Caldwell against I. M.
On that appeal this court through Vallxant, J., then said: “The ground on which the trial court based its peremptory instruction is not very apparent from the record, but it must have been because the court was of the opinion either that the plaintiffs’ evidence did not tend to prove the allegations of the petition, or that the testimony of defendants conclusively established this plea of payment, or because there was no reply to the affirmative plea. In no phase of the case, however, as presented by the record, was the peremptory instruction justified.”
When the ease was returned to and again came up for hearing before the circuit court without the intervention of a jury, upon substantially the same state of .facts developed
Again, it might be here said, “The particular ground on which the trial court based its instruction is not very apparent.” .
Wherein the testimony offered by plaintiffs failed to establish a prima facie liability against defendant’s testator, Davidson, we are at a loss to conjecture, and upon what theory of procedure the trial court acted in determining otherwise, we can only presume from the present insistence of respondent’s counsel, in trying to maintain the trial court’s action in the premises, and that is, that plaintiffs did not go far enough with their proof 'and show, in addition to the performance of the work by plaintiffs’ assignor for defendant’s testator, I. M. Davidson, as per their contract, and the value and amount to be paid for said work, that the same had not been paid for, as alleged in their petition. Counsel for respondent insists that it is not enough to prove that work has been done under a contract to establish a debt, but, using the language of his brief, “the further proof that it was not paid for, and was due, must be made before a judgment can be recovered, and such was not done in this case.” This is a misconception of the burden resting upon plaintiffs in an action like the one at bar. Payment is a matter of defense that must be affirmatively pleaded (as defendant’s answer shows was done in this case) if it is to be made availing to the defendant. Here, however, the plaintiffs by the instruction given, are denied the right to have submitted for the consideration of the court,
Plaintiffs’ testimony should have been submitted to the determination of the jury, or the court sitting in that capacity, and for its refusal so to do, its judgment is reversed and the cause remanded for a new trial.