238 S.W. 699 | Tex. App. | 1922
The court submitted to the jury the sole issue in the case in the manner following:
"Question 1. Do you find from the evidence that the note sued on in this case has been paid by G. W. Baker, Jr.? (Answer Yes or No.) The burden of proof in on the plaintiffs to show by a preponderance of the evidence their right to recover in this case. You are the judges of the weight of the testimony and of the credibility of the witnesses."
The appellant objected to and predicated error upon giving the instruction relative to "the burden of proof," upon the ground that, the only issue in the case submitted to the jury being the question of payment of the note, which was an affirmative defense pleaded by the defendant, it was error to place, as the instruction had the effect to do, the burden of proof on the plaintiffs to establish that the note had not been paid.
Manifestly the instruction placing the burden of proof would reasonably be construed by the jury as having reference to the answer of question No. 1, the only question submitted to them. That single question at issue was the payment or nonpayment of the note sued on. Therefore the correctness or incorrectness of the instruction given and complained of becomes very pertinent in this case, in view of the fact that that sole question was submitted to the jury to answer upon the very conflicting evidence. It is settled in this state by the express terms of the statute that payment must be specially pleaded as a defense by the defendant, else it cannot be proven by him. Article 1907, R.S. A plea of payment is then a specially pleaded affirmative defense, operating, in effect, to admit that a cause of action as stated in the petition once existed, but at the same time seeking to avoid the original legal liability of the defendant by showing that such cause of action ceased to exist. And as an affirmative defense the plea of payment, as is evident, tenders an affirmative issue, logically necessitating the establishing by the defendant of the truth of the payment of the debt sued on. It becomes the proper order of proof for the plaintiff to offer evidence on that subject only after the defendant had introduced proof to support his plea of payment. Accordingly the burden of proof must be assumed by the party interposing the plea and asserting the affirmative of the issue as *701
determined by the pleadings. And that is the rule applicable, we think, in this state. Matossy v. Frosh,
"By the plea of payment, the defendant took on himself the burden of proof. The effect of the plea, standing alone, was to admit that the cause of action had existed, as alleged, and to impose upon the defendant the necessity of proving that it had been extinguished, by payment. It dispensed with proof by the plaintiff of his cause of action."
The burden of proof, as determined by the pleadings, never shifts from that party; but the burden of evidence, in distinction from the burden of proof, may be shifted upon the party who does not have the affirmative of the issue, the position, though, of the "burden of proof" being in no way affected. 16 Cyc. p. 932; 22 C.J. p. 67.
The release deed in evidence was not a contract, and conclusive of payment of the note. It was subject to be explained by parol evidence as a mistake, and intended by the parties to include another and different note than the one sued on. The release deed could only be conclusive if not rebutted by evidence on the plaintiffs' part. And both the allegation and proof of mistake by plaintiffs could only be treated as a denial and rebuttal of the defendant's affirmative defense and issue. The burden of proof was not changed. We think the case of the Illinois Steel Bridge Co. v. Wayland,
In this particular case, in view of the single issue submitted, we think the instruction complained of should not have been given to the jury, and constitutes error requiring that the judgment be reversed, and the cause remanded for another trial.
