| Wis. | Nov 17, 1903
Defendant contends that the circuit court committed error in instructing the jury upon the rule of the burden of proof applicable to the defense of payment. The court instructed the jury at length upon the burden of proof and the preponderance of evidence. The following instruction was given as bearing on the defense of payment:
“The burden of showing the $13,000 mortgage given by the defendant to the plaintiff as trustee was a payment in full of the entire amount due under the judgment against the defendant is irpon the defendant, and he must satisfy you by a fair preponderance of the evidence that the giving and acceptance of such mortgage constituted a payment in full of the $152.63 sued for in this action.”
“The burden of proof is on the defendant herein as to all the material facts necessary to sustain his contention that he has satisfied and paid the same, and it is incumbent upon the defendant to establish those allegations by clear and satisfactory evidence."
The first instruction above referred to correctly charges that the burden was on the defendant to establish payment of plaintiff’s claim and that the fact of payment must be established ‘‘by a, fair preponderance of the evidencebut the instruction which followed on the subject modified this rule in a material respect, in that it informed the jury that it was incumbent on the defendant to establish the fact of payment “by clear imd satisfactory evidence ” which negatives the idea that a mere preponderance of evidence is sufficient to warrant the jury in finding that payment was made as claimed. The last instruction given informed-the jury that the fact of payment must be shown by evidence establishing it to a higher degree of certainty than its mere preponderance. It is argued, though this rule be erroneous, it should not be held prejudicial, because the court also instructed the jury correctly upon the subject. But what rule did the jury follow ? It is fully as probable they followed the one rule as the other in their determination of the issues. They found payment was not established as alleged by defendant. This may have resulted because they believed the proof failed to show payment to that degree of certainty as defined and required by the last instruction, though believing that the
Uumerous errors are assigned upon the court’s rulings on objections as to the admission and rejection of testimony. An exception is argued upon the ruling excluding any conversation between defendant and plaintiff’s attorney Geo. IT. Wahl, who, it appeared, was deceased, upon the ground that defendant was not competent to establish any transaction with plaintiff’s deceased agent Mo evidence had been offered by plaintiff concerning the transactions between the deceased and defendant, to remove the baa* of the statute covering the subject. This precluded defendant from giving any such conversation when objected to by the adverse party. We perceive no error in the ruling.
Many of the exceptions to these rulings pertain to the exclusion of evidence tending to show the nature and amount of the original liability out of which this claim arose, and the negotiations pertaining to its payment, and the insolvency of Mr. Kretschmar. We find it unnecessary to discuss each exception in detail, since a new trial must be directed upon other grounds. The record, however, shows that the trial court limited the cross-examination of plaintiff too strictly. The jury should have been informed of the facts and circumstances surrounding these negotiations, to give them a proper understanding of their significance and aid them in properly applying the evidence to the controverted issues. Eor this purpose, it was proper to elicit from the plaintiff the negotiations and conversations actually had with him concerning the payment and satisfaction of tire original judgment, and what took place when the securities and property were deposited and conveyed by him to apply on this liability.
By the Court. — The judgment is reversed, and the cause remanded for a new trial.