84 N.W. 368 | N.D. | 1900
The defendant is a co-partnership. In 1898 it operated a line of public elevators in this state. One H. H. Planson had charge of its elevator at Christine, and also of defendant’s business at that point in buying and shipping grain. This action is to recover the sum of $150 and interest, as due and unpaid, for 200 bushels of wheat sold and delivered to defendant by plaintiff in the month of February, 1898, at its elevator at Christine, at an agreed price of 75 cents per bushel, no part of which sum, plaintiff alleges, has been paid. The answer sets up the defense of payment, and that defense only. By this plea the issues of fact for trial were narrowed to the single issue of payment, and as to that the defendant had the burden of showing by competent evidence the, fact that he had discharged the indebtedness, which is admitted by his plea of payment. On the proposition that pleading payment of a liquidated demand confesses the cause of action, and dispenses with the necessity of plaintiff proving his cause of action, and casts the burden of proving the payment so pleaded on the defendant, see Caulfield v. Sanders, 17 Cal. 569. In Mohr v. Barnes, 4 Col. 351, the court said: “The effect of the plea is to admit the original liability, and the burden of its discharge is assumed by the defendant.” See, also, 16 Am. & Eng. Ene. Pll & Prac. 168, and cases cited. The trial in the District Court resulted in a verdict for plaintiff for the amount prayed for in her complaint. Defendant made a motion for a new trial. This was denied, and the appeal is from the order overruling such motion. The motion was based entirely upon alleged errors of law occurring at the trial. All of these alleged errors, some 30 in number, are urged on this appeal as ground for reversing the order of the District Cohrt, Upon the record pre