27 Ind. 390 | Ind. | 1866
The appellants sued White for money paid to his use, at his instance and request.
The defendant answered in two paragraphs, as follows: 1. That when this action was commenced, the plaintiffs were* and still are, indebted to him in the sum of §545 25, for 1090 bushels and 54 lbs. of ear corn delivered by defendant to said plaintiffs, at their warehouse at Marshfield, and the defendant offers to set-off against the amount due to the plaintiffs an amount equal thereto, and demands judgment for §15149, the residue, and costs. 2. That in December, 1864, defendant sold and .agreed to deliver, during the summer and fall of 1865, at the plaintiff’s warehouse, at Marshfield, 1200 bushels of ear corn, for which the plaintiffs agreed to pay the sum of seventy-five cents per bushel, and agreed to pay the several sums mentioned in the complaint, on said, contract, and that the same were so paid; that the defendant delivered 180 bushels and 22 lbs. of the 'corn, at the plaintiffs’ warehouse, on the contract, and that he was ready and willing, within the time stipulated, to deliver the residue thereof, but the plaintiffs refused to accept the same, to the defendant’s damage, §500.” The plaintiffs replied to the first paragraph of the answer, that the corn mentioned therein was paid for by the plaintiffs before the commencement of the suit, in other and different money than that for which plaintiffs sue. The appellants filed the general denial to the second paragraph of the answer. On the trial*
Were the plaintiffs entitled to open and close the case to the jury?
It is claimed that the replication of payment is a denial of the answer. This position cannot be maintained. Payment is an affirmative plea, or reply, and is new matter. Under the issue formed on the first paragraph of the answer, the only question was as to the payment, and the plaintiffs had the burden of proof. In the absence of any proof whatever, 'the defendant was entitled to a verdict. The party upon whom rests the burden of the issues has, under the code, the right to open and close the case, and the party having that burden is the party who, if no proof is offered, will be defeated in the suit. Judah v. The Trustees of the Vincennes University, 23 Inch 272.
The issue on the second paragraph of the answer did not take from the plaintiff the right to open and close the ease to the jury.
The verdict is not sustained by the evidence. The appellants were not in default. They had paid $314 21 on the contract in January and February, 1865; no corn was delivered until August of that year’, and then but 100 bushels. They were under no obligation to pay the $50 demanded by the appellee. They did not deny that they had contracted for the corn, they only disputed the terms of the contract. This was not sufficient to excuse the defendant from being ready at the place, as well as at the time,
The judgment is reversed, with costs, and the cause remanded, with directions to grant a new trial, and for further proceedings.