8 Kan. App. 215 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
It is contended that the court ought to have granted a new trial for the reason that the verdict is contrary to the evidence, contrary to law, and is excessive in amount. A part of the controversy grew out of a sale of personal property on Piper’s ranch, which the plaintiff Matkins claimed was not delivered according to the contract.. Aside from this there were two items, one for a commission of $500 for the sale of a part of Piper’s ranch, and another item of $119 for commission for the sale of 119 cattle belonging to Piper, to one Hood. The sale of the personal property was evidenced by a contract referred to as a bill of sale, in which the items of property sold were described.
The items for which the suit was brought, aside from the commission, were not mentioned specifically in this contract, and the plaintiff, Matkins, claimed that they ought to have been mentioned, but were omitted by the mistake of either the attorney who drew the contract, or the typewriter, or Piper, and that it was agreed at the time, the attention of the parties having been called to it by Matkins, that the omissions were made, and that Piper agreed to make it right without stopping to rewrite the article, inasmuch as the attorney was ill and the hour was late and the parties were in haste to get away. On the part of Piper, it is claimed that there was no mistake ; that there was no reference to it at the time the article was drawn, and that there was no promise to make it right; that everything that was $old was delivered;
The contention under this head is that there was no mutual mistake; that it was impossible that there could be ; and that therefore the jury were wrong in allowing anything on account of the articles claimed to have been omitted from the contract. It is further claimed that the jury ignored the direction of the court with respect to this matter. It was a question for the jury to say whether there was a mutual mistake and whether it was agreed between the parties that it should be subsequently corrected and made right. As to a part of the items, the jury found for the plaintiff, and their finding is supported by the evidence.
The law doubtless is that the burden of proof is on the party having the affirmative of the issue. There is no question but that in the first instance, as to the allegations of the plaintiff’s petition on all the items of his account, the burden was on him to establish everything that was necessary to enable him to recover, and that this burden never shifted ; that at no time was the burden on the defendant to prove the 'contrary. It is true that as the case progressed the burden of- going forward with the evidence did shift to the defendant, but after the evidence was all concluded, in the consideration thereof by the jury, the burden of proof still rested on the plaintiff as to all matters on which he founded his claim ; and the question is, Did that part of the instruction which says, “Then it devolves upon the defendant to convince you that he is not right,” signify to the jury a change of the burden of proof upon the final deter
We are of the opinion that the instruction placed the defendant at a disadvantage not authorized by law ; that the instruction is prejudicially erroneous ; and for this error the judgment must be reversed and a new trial awarded. (5 A. & E. Encycl. of L. [2d ed.] 21-26.)
