Utah Foundry & Machine Co. v. Utah Gas & Coke Co.

Dec 20, 1912

No. 2396

Reporters:: , ,
Before:: Straup

STRAUP, J.

The plaintiff brought this action to recover a balance of $285, alleged to be due for goods and supplies, consisting of iron castings, sold and delivered to the defendant. The defendant, in its answer, admitted the alleged claims and’ the amount due. By way of counterclaim it alleged in the first count that, in purchasing goods and supplies by the defendant from the plaintiff, one Wright, the agent of the defendant and acting for it in the making of such purchases, had entered into a conspiracy with the plaintiff whereby the goods were purchased at an excessive price, and the excess paid by plaintiff to Wright, and that in furtherance of such conspiracy the plaintiff in such transactions overcharged the defendant in the sum of $200. In the second count the defendant alleged that between the 1st day of August, 1906, and the 1st day of August, 1907, it was the owner and lawfully possessed of certain “cast-iron piping” —scrap iron — of the value of $300, and that “on divers *535dates between said dates, the exact date this defendant is nnable to give, the plaintiff, at Salt Lake City, Utah, unlawfully took and carried away said goods to wit, said iron piping and converted and disposed of the same for its own use to the damage of this defendant in the sum of $300.” The counterclaim was ‘denied. The case was first tried in the city court. From a judgment in favor of the plaintiff on its complaint for the full amount sued for, the defendant appealed to the district court. There the case was tried three times before the court and a jury. In the district court the defendant abandoned the first count of its counterclaim. So each time the case was tried it was tried solely on the issues presented by the counterclaim in respect of the alleged thefts and conversion of the defendant’s scrap iron by the plaintiff. The first trial resulted in a verdict in favor of the plaintiff for the full amount sued for. The second was a mistrial resulting in the discharge of the jury without a submission of the cause to them after the evidence had all been adduced, the parties had rested, and arguments to the jury partially made. The third resulted in a verdict in favor of the defendant on its counterclaim in the sum of eight dollars in excess of plaintiff’s claim. From that judgment the plaintiff has appealed. The evidence and proceedings had on the first and last trials in the district court and the substance of the second are preserved by a bill of exceptions and made a part of the record on appeal. Numerous errors are assigned. We find it necessary to consider but two of them: Those relating to the charge, and insufficiency of the evidence to support the finding on the counterclaim.

The defendant was engaged in manufacturing and furnishing gas in Salt Lake. City; the plaintiff in a foundry business. In support of the thefts and conversions alleged in its counterclaim, the defendant called but one witness, its superintendent of distribution, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍who, in substance, testified: At the time in question the defendant was laying about sixty miles of gas mains along the streets of the city. It furnished its own material. The work was done under *536contract by Iianly & Kitchie. Piping and other material were delivered at railroad sidings for the contractors who hauled and scattered the piping and material along the streets were trenches had been dug and where they remained until put in the trenches. The plaintiff, at the defendant’s request, furnished the defendant cast-iron goods and supplies used by it in the prosecution of the work. In the laying of the pipe and in the construction of the work, scraps and pieces of pipe and other material resulted, which were “left lying around on the job until they were disposed of.” The witness further testified that among other duties it also was his duty to superintend the laying of the gas mains. He attended to the hauling of the material, the keeping of plenty of pipe ahead for the contractors, and the making of estimates on which the contractors were paid. The defendant also had in its employ one W. 0. Wright, who was foreman of the inspectors. It was his duty to inspect the work, to supervise and control inspectors-under him, and to see that the work was done in accordance with the contract. There was no one charged with the duty of looking after the scrap: iron scattered along the streets after the mains had been laid; but the witness and Wright both looked after it and both jointly attended to it. The witness further testified that in the construction of the work throughout the city the defendant during the prosecution-of the work, and after the mains had been laid, lost about forty tons of scrap iron so left scattered) along the streets. He largely arrived at this estimate by ascertaining from the books of the defendant the amount of gas pipe and other material purchased by it; by ascertaining from the books the amount of gas pipe and other material placed underground; and by subtracting the latter amount from the former. He also testified that on several occasions he directed-employees of the defendant to gather some of the scrap iron and that he caused some of it to be delivered to plaintiff. But he did not testify how much he caused to be so gathered or delivered to it. He, from vouchers rendered by the plaintiff, testified that it at different times had received about *537seven tons and 1572 pounds of scrap’ iron, which, at the market price of one cent a pound, amounted to $155.72; but that the defendant was given full credit and was paid therefor. He did not testify, nor did any other witness, that Wright had’ no authority to sell scrap iron of the defendant, but testified that Wright had no authority to sell scrap’ iron “on his own account.”

Robert Croft, Jr., who owned about 4900 shares of the capital stock of 10,000 shares of the plaintiff, was the president and general manager of the plaintiff corporation. His father, Robert Croft, Sr., seventy-three years of age and owning thirty shares, was its secreta,ry, bookkeeper, and collector. Fred Croft a son of Robert Croft Sr., and a stockholder of the company, had a personal controversy with the plaintiff over matters between him and’ it. He consulted an attorney about it, the same attorney who represented the defendant in this litigation. Fred took from the private papers .of the plaintiff a returned check which had been issued by the plaintiff to Wright for fifty-six dollars, and indorsed by him, and the stub from which the check had been detached and delivered them to the attorney. It is not made to appear that they had anything to do with his controversy. The stub, when it was delivered to the defendant’s attorney by Fred, had written on it the words “for iron, and commission.” This, with Fred’s consent, was communicated to the general manager of the defendant and the check and stub shown him. His suspicions were aroused that Wright had some kind of dealings with the plaintiff in which money was paid him, and that he had failed’ to account to the defendant for it. Thereupon he directed the witness, the defendant’s superintendent of distribution, and his stenographer, to visit the Crofts and interview them. They visited the plaintiff’s place of business and there found Croft, Sr., alone. Among other things the witness said to him: “Information has reached us to the effect that Wright sold scrap iron to you.” As testified to by the witness, Croft first denied it; then he said that Wright had sold him scrap iron, but he presumed that he was an employee *538of the gas company; that he paid him, and presumed that he had paid it to the gas company. The witness ashed him how Wright delivered the iron to him. He answered that Wright called him up and ashed him to send a team to certain places to collect scrap iron. The witness told Croft that “it was peculiar that he would tahe that hind of an order from Wright when previous orders, any time he ‘had been ordered to collect scrap iron by the company, came ‘directly from him (the witness) or else the iron was hauled to him (Croft) by our teams or hired teams.” The witness athed Croft how he had paid Wright. He said by chechs. He was ashed if he had any other transactions with Wright and he said that he had not. The witness then ashed permission to looh over the papers, chechs, stubs, and boohs of the plaintiff. He and his stenographer were given liberty to do so. About that time Robert Croft, Jr., appeared at the office. Both he and his father assisted the witness and his stenographer in gathering up and getting all the returned chechs and stubs and all boohs and papers pertaining to plaintiff’s business. The witness and his stenographer found four returned chechs which had been issued to Wright by the plaintiff. He testified that he and his stenographer compared the chechs with the stubs and that on at least ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍one of them found written or noted “for commission,” not for iron, and testified that he could not remember what notation or words were on the other stubs. The witness showed Croft two chechs and ashed permission to tahe them. The permission was granted. They tooh the two and clandestinely two others. Later all the chechs tahen were returned to the plaintiff, including the chech and stub which Fred had tahen. At the trial the defendant called for all the chechs which the plaintiff had issued and given to Wright. The plaintiff produced five. It was unable to find or produce the chech or stub which Fred had tahen and which had been returned to the plaintiff. The five chechs were put in evidence. Evidence was given of the notation on the missing stub and the contents and amount of the missing chech. The other stubs were not called for and were not offered in *539evidence by the defendant. Tbe six checks amounted in the aggregate to $277.45, all payable to Wright and issued by the plaintiff and indorsed by Wright. While the witness testified that Croft, Sr., first denied’ receiving any iron from Wright, then admitted receiving some, and afterwards “told a different story,” again denying it, still the witness did not testify that Croft stated any amount of Iron so received by him from Wright.

This, in substance, is all the evidence adduced by the defendant in support of its counterclaim that the plaintiff at divers times “unlawfully took and carried away” iron belonging to the defendant “and converted and disposed of the same for its own use.”

Two witnesses testified on behalf of the plaintiff, Eobert Croft, Sr., and Eobert Qroft, Jr. They denied that they or the plaintiff had received any iron from Wright or the defendant, except the seven tons and 1572 pounds for which admittedly the defendant was given credit and was paid. They testified that when the defendant began its construction work it was purchasing foundry supplies from other foundries in the city. Thereafter Wright called on the Crofts and told them that he was in a position to give the plaintiff orders for supplies and that he could throw a good deal of work to it; but, if he did, he thought he should be ■entitled to a commission on the amount of goods sold by plaintiff to the defendant. After negotiating back and forth as to the rate the plaintiff finally agreed to give him ten per cent. Thereafter the plaintiff received orders from the defendant for foundry supplies and furnished to the defendant in all about $3300 worth, for which plaintiff was paid in full by the defendant, except the balance sued for of $285. When the last check was issued to Wright, the amount so sold and delivered was about $2580. The Crofts further testified that the checks issued by plaintiff and delivered to Wright were all in payment, not of scrap iron, but of commissions. Croft, Sr., who wrote the checks, testified that the stub after it had been taken by Fred and when it was returned to the plaintiff had on it the words “for iron *540•and commission;” but that tbe word “iron” was not in bis (Croft, Sr.’s) bandwriting, and was not written on tbe stub when tbe check was issued, and was not on tbe stub when it was taken from tbe plaintiff’s possession, and in effect testified that some one wrote tbe word “iron” on tbe stub after Fred bad taken it and before it was returned. Tbe plaintiff offered in evidence tbe stubs of tbe other checks, all of which bad on them tbe notation or memorandum “for •commission,” not for iron. Tbe offer was supported by tbe testimony of Croft that be bad personal knowledge of tbe fact so stated; that tbe notation or memorandum was made on each of tbe stubs by him at the time tbe checks were written and detached therefrom and delivered to Wright; and that they were made in tbe regular and due course of business. Upon defendant’s objections, tbe offer was by tbe ■court refused.

Upon these issues and upon this evidence tbe court instructed tbe jury to find for tbe plaintiff on tbe issues presented by tbe complaint for tbe full amount sued for, together with interest. Upon tbe issue presented by tbe counterclaim, tbe court charged:

(5) That “in order to establish defendant’s counterclaim the burden is on tbe defendant to prove by a preponderance of tbe evidence tbe amount of cast-iron pipe, if any, belonging to tbe defendant that tbe plaintiff unlawfully took ■or carried away, if any, and, second, tbe reasonable market value thereof.”

The court also charged:

1,2 (6) That if tbe jury from a preponderance of tbe evidence, found that Wright “delivered to plaintiff cast-iron piping, tbe property of tbe defendant, and that plaintiff bad not given defendant credit on its account for tbe same, then tbe court instructs you that you must find for tbe defendant on tbe counterclaim for tbe reasonable market value of such cast-iron piping.”

Tbe court further charged:

“(8) If you find from a preponderance of tbe evidence that at least part of tbe moneys paid to Wright by tbe *541plaintiff company was paid for scrap iron of tbe defendant ‘Company wrongfully sold to tbe plaintiff company by said Wrigbt, but you are unable to determine definitely tbe exact amount so paid, tben you are instructed tba.t it is peculiarly witbin tbe knowledge of the plaintiff company as to just bow much was paid for scrap iron, if any, and bow much was paid as commission, if any, and witbin plaintiff’s power to explain and show definitely tbe amount for each; and you have tbe right, in tbe absence of any such showing and ■explanation, to assume, if under all tbe circumstances of tbe case you find it is a fair assumption, that all of said moneys so paid to Wrigbt were paid to him for scrap iron, and you may resolve reasonable doubts as to tbe amount, if any, of such scrap iron so sold to tbe plaintiff most strongly against tbe plaintiff company. It is tbe policy of tbe law not to permit a wrongdoer to profit by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍bis own wrongdoing; but, before you can apply this principle, you must believe from a preponderance of the evidence that tbe plaintiff company was in fact a wrongdoer and actually received from Wrigbt scrap iron wrongfully taken by Wrigbt from tbe defendant ■company.”

Tbe proposition as to burden of proof, and as stated in paragraph five of tbe charge, was correctly stated. Let it also be assumed that tbe proposition as stated in paragraph six, if witbin tbe allegations of tbe counterclaim, was also correctly stated. But tbe propositions and principles stated in paragraph eight are, we think, erroneously stated. Tbe court apparently bad in mind tbe principle applicable to proceedings to reclaim or to recover tbe value of property wrongfully, fraudulently, or negligently commingled or confused with other property of like character, and where, because of such commingling or confusion by a wrongdoer, tbe property or its value sought to be reclaimed or recovered was ‘not capable of identification. And on that theory does the respondent defend tbe charge. Hence cases are cited that, where one fraudulently or wrongfully or negligently commingled or confused property of another with that of bis own of like character, tbe burden is on him to designate *542or point out bis own’ property or to sbow tbe quantity or tbe amount thereof. And, in tbe absence of sucb a showing by him, tbe wrongdoer may be held to a forfeiture of bis own property, or tbe jury justified in finding in favor of tbe innocent wronged party tbe highest proved price and tbe lai‘gest proved quantity of bis property shown to have been commingled or confused by tbe wrongdoer. “We do not see bow this doctrine can properly be applied here.

No claim was made nor is there any evidence to support tbe. claim that tbe plaintiff commingled or confused defendant’s property with plaintiff’s. Tbe charge is that tbe plaintiff unlawfully took and carried away property belonging to tbe defendant and converted it. That allegation was denied. Upon that issue tbe defendant bad tbe burden of proof. That burden did not shift. It was upon tbe defendant when tbe case opened, so continued throughout tbe trial, and so remained when tbe evidence closed and tbe case let to tbe jury. There can be no doubt of that. And so tbe court charged in paragraph five. But in paragraph-eight the court wholly destroyed it. Nor can tbe charge be justified on tbe theory of particular facts resting peculiarly within tbe knowledge of tbe plaintiff. It cannot be said that tbe alleged facts that tbe plaintiff unlawfully took and carried away property belonging to tbe defendant rested peculiarly within tbe knowledge of tbe plaintiff. Tbe defendant made the charge and it was required to prove it. As has been seén, tbe defendant adduced no evidence that tbe plaintiff wrongfully or unlawfully took and carried away any iron belonging to tbe defendant. Neither did it show that Wright wrongfully or unlawfully took a pound of its iron, or wrongfully or unlawfully sold or delivered’ any to-the plaintiff. Neither ‘did tbe defendant otherwise prove that tbe plaintiff wrongfully dr unlawfully ‘came into possession of “a pound of tbe defendant’s iron, or that it received any‘iron from tbe defendant for which tbe defendant bad not been given full credit. It did show that tbe plaintiff received seven tons and 1572 pounds of tbe defendant’s iron, but at tbe same time also proved that it was fully paid’ for *543tbat. The defendant, however, sought to have the infer•ence drawn that the plaintiff wrongfully received additional iron from Wright, .based’ on the transactions of the plaintiff with Wright in respect of the checks, and of the admissions •of Croft, Sr. The cheeks issued by plaintiff to Wright •and indorsed by him, did not, on their face, disclose what •they were given for. As tending to show that, the defendant was permitted’ to put in evidence the admissions of Croft, “Sr., which were to the effect that he had received iron from Wright; that he paid him for it by cheeks; and that he had no other dealings or transactions with him. But the making of such a claim and the adducing of such evidence in no sense shifted the burden of proof. The burden •of proof, even as to particular facts, lies on him who wishes the court to believe in their existence. If the defendant •desired the court and the jury to believe that the checks were given for iron which the plaintiff had: wrongfully received from Wright, it had the burden of proving such fact. It advanced it, asserted and claimed it, and, to justify the court and jury to believe such was the fact, the defendant was required to establish it. It could not merely assert it and then require the plaintiff to disprove it. The plaintiff •denied that the checks were given for any such purpose. Its witnesses testified that the checks were given, not for iron, but for commissions; that the plaintiff received no iron whatever from Wright; and that no part of the checks were given for any such purpose. But as to that fact, and upon the evidence adduced by it, the defendant contended that all of the cheeks were given to Wright for iron; the plaintiff, on the evidence adduced by it, that all of the checks were given for commissions. Neither the plaintiff nor the defendant contended that a part of the checks were given for iron and a part for commissions.

*5443 *543The charge (paragraph eight), with respect to this question, not only contains wrong principles as to the burden of proof, but is also erroneously bottomed on inferences upon inferences, on assumptions of wrongdoing by the plaintiff and a want of explanations by it in utter disregard of *544its evidence, and‘is but an argument on the theory and on behalf of the defendant. While the court, of course, did not intend it as such, nevertheless that is the effect of it. Notwithstanding the plaintiff by its evidence had denied that any part of the checks was given for iron, that it had’ wrongfully received any either from Wright or the defendant, or had converted! any, and upon its theory fully ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍explained the transactions had with Wright and the defendant, which, as explained by it, showed it not to be a wrongdoer and not guilty of a conversion, nevertheless the court cast on the plaintiff the burden of explaining such transactions on the defendant’s theory that the checks or some of them were given for iron, that the plaintiff was a wrongdoer, and that it was guilty of some kind of a conversion of an indefinite and uncertain amount of iron, and hence required the plaintiff to explain how much it had converted, when by its pleadings it had claimed, and by its evidence-shown that it had converted none. As well say that a defendant, who by his pleadings had denied the commission of,, and by his evidence shown he had not committed, a charged larceny, and who on his theory had given in evidence full explanations of all transactions connected therewith clearly showing his innocence, nevertheless was also on the theory of his adversary required to show the amount and value of property purloined by him.

*5454, 5 *544Now, as to the insufficiency of the evidence: As already-shown, there is a total want of evidence that the plaintiff,, as alleged in the counterclaim, unlawfully or wrongfully took or carried’ away ai pound of the defendant’s iron. No-such claim, on the evidence, is made. The claim made is that Wright wrongfully took iron from the defendant and without authority, delivered-and sold it to the plaintiff, and that the amount thereof is as evidenced by the aggregate amount of the checks. But there is also no evidence to show that Wright wrongfully took a pound of iron or wrongfully sold any to the plaintiff. There is the evidence of Graft, Sr.’s, admission that he received iron from Wright; that he paid him for it; and that he presumed Wright *545bad paid it to tbe defendant. Bnt there is no evidence that Wright, the defendant’s foreman, who inspected the work and whose duty it was to see that it was done in accordance with the contract, and who, as shown, on at least several occasions with the knowledge and consent of the defendant, ordered goods and material, and who, jointly with the superintendent of distribution, looked after and took charge of the scrap iron strung along the streets, unlawfully or wrongfully took any iron or wrongfully sold or delivered any to the plaintiff. The defendant did not even show that Wright was unauthorized to sell scrap iron on behalf of the defendant. It did show that he had no authority to sell its scrap iron “on his own account.” The evidence on this point is: The superintendent of distribution, after testifying that Wright received his orders from him, was asked and he answered: “Q. Did you ever authorize Wright to sell any scrap iron? A. On his own. account? Q. Tés. A. No, sir.” And in the defendant’s counterclaim, verified by its general manager, the defendant alleged that Wright “was the acting agent of the defendant in making purchases” of supplies for the defendant from the plaintiff, and in effect transacted the business for the defendant with the plaintiff in the making of such purchases.

The only legitimate inference upon the record is that Wright had authority to sell and dispose of the scrap iron. At least there is ample evidence from which such an inference may be deduced. If he had no such authority, the defendant well could have shown it. Instead of showing the want of such authority, it adduced evidence which rather tended to show that he had authority. Hence, in view of the undisputed evidence, the admission of Croft that he nad received iron from Wright and paid him for it does hot support the claim that the plaintiff wrongfully or without authority received the defendant’s iron and converted it. In the next place, the admission of Croft, Sr., was not a binding admission of the plaintiff. He was the secretary of the plaintiff corporation, and its bookkeeper, and collec*546tor. Tbe rule is well settled that, to bind the principal with an admission of his agent, the declaration or statement of the agent must have been made within the scope of his employment and during the transaction of business by him for the principal and in relation to such business; that is, the declaration or statement of the agent must be contemporaneous with or in the course of the business-or transaction and in relation thereto conducted by the agent for the principal within the scope of the agency. The declarations or statements of the agent here were not made under any such circumstance. They were made long after the transactions with respect to which they were declared had wholly ended, long after the business had been conducted, and were not made in the course of nor in relation to any business which the agent was then transacting or conducting for the principal. Certainly an agent not in the course of transaction of any business for his principal, may not on the public mart or elsewhere make binding admissions of fact against his principal by a mere narration of facts relating to transactions wholly ended and long past. Property rights of the principal cannot be bartered away in any such manner as that. Croft, of course, could have been called as a witness and permitted to testify to any fact within his knowledge. But his admission, under the circumstances, was not evidence against his principal, the plaintiff. He was called as a witness, not by the defendant, but by the plaintiff, and gave testimony, not only in dispute of the admission but of facts wholly at war with it. We think the evidence insufficient to sustain the defendant’s counterclaim. The judgment, therefore, cannot be sustained, for two reasons: The erroneous charge, and insufficiency of the evidence to support the counterclaim.

*5476 *546The further question is, What order should now be madei whether to remand the case for a new trial or to direct a judgment in favor of the plaintiff ? In actions at law where judgments are reversed for errors such as here, the cause generally is remanded for a new trial. But here the plaintiff’s claim ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is confessed. On its counterclaim the *547defendant already bas bad three trials in tbe district court. Tbe whole of tbe evidence with respect to two, and tbe substance of tbe other, is before us. On neither did tbe defendant produce or proffer sufficient competent evidence to support its claim. We think it evident tbe jury rendered a verdict for tbe defendant on tbe last trial solely because of the charge. That was tbe opinion too of tbe trial court. Said tbe court in refusing a new trial: “I think tbe verdict tbe first time w&s obtained very-largely now, I think, because óf tbe lack of a proper instruction. . . . I think that if tbe first jury bad been given tbe same instructions that they were given’ in tbe last trial as to tbe burden of proof, tbe verdict would have been different in tbe first case” (trial). The court further observed that on tbe first trial tbe jury “were instructed that tbe burden was on tbe defendant to prove, not only that tbe plaintiff bad obtained iron (that is, bad converted iron belonging to tbe defendant), but tbe amount of it also, and that was tbe extent of tbe instruction,” and, after stating that upon tbe evidence tbe jury could not definitely fix that amount, observed, “But when I instructed them in tbe last case that, if they were satisfied from tbe evidence that tbe plaintiff bad converted some amount, then tbe amount it may have converted was peculiarly within the knowledge of tbe plaintiff and it should not profit by its wrongdoing, but must disclose tbe amount;” and, because the plaintiff bad not done that and “concealed that amount,” tbe jury reached tbe conclusion as evidenced by their verdict. This we think fairly reflects tbe intended meaning of tbe charge and tbe application tbe jury made of it. As already observed, we think tbe charge wrong and highly prejudicial. And‘since tbe defendant bas bad three trials in tbe district court on the issues presented by its counterclaim, and since in neither it adduced or proffered sufficient competent evidence to support its claim, and since it prevailed only because of tbe erroneous charge, we think this litigation ought to end. We cannot see any good tu be sub-served, or any benefit to tbe defendant, by remanding tbe *548case for another trial. Whatever may be the real merits of this controversy, we think we may assume that when the defendant by its proffered’ evidence on three trials was unable to support its claim, to do which it, and not the plaintiff, had the burden, it cannot do so on a fourth trial.

The order, therefore, is that the judgment of the court below be reversed and vacated and the case remanded to the district court, with ‘directions to dismiss the counterclaim and to enter a judgment in favor of the plaintiff for the amount alleged in its complaint, together with interest thereon. The plaintiff is awarded all costs on the appeal and all taxable costs in the court below, except those incurred on the second trial.

FEIGN, C. J., and McCARTY, J., concur.