Cowen Co. v. Houck Mfg. Co. , 249 F. 285 ( 1918 )

HOUGH, Circuit Judge

(after stating the facts as above). [1, 2] It cannot be doubted that what determines the position of the burden of proof is the answer to the question, “Who has the affirmative of the issue?” But to reconcile all the rulings made after admitting this principle would be quite impossible. An issue is “a single, certain, and material point, arising out of the allegations of the parties, and generally should be made up by an affirmative and negative.” Sitnonton v. Winter, 5 Pet. 148, 8 L. Ed. 75. Allegations are usually made in written pleadings; therefore the affirmative of the issue is normally determined by inspection of the pleadings.

The rule (in language taken from Stephens’ Digest of Evidence) is frequently stated thus:

“The burden of proof in any proceeding lies on that party against whom judgment would be given, if no evidence at all were produced oil either side; regard being had to any presumption which may appear upon the pleadings.” John Turl’s Sons v. Williams, etc., Co., 13(5 App. Div. 710, 121 N. Y. Supp. 478.

It sometimes happens that a positive defense may properly be introduced under a general denial, in which case the burden of proof is still upon the plaintiff, because that burden is determined by the pleadings, and not the condition of the evidence. Adams v. Pease, 113 Ill. App. 361. An excellent statement of the general rule and its application is found in Small v. Clewley, 62 Me. 155, 16 Am. Rep. 410.

[3] Distinctions have been drawn between the burden of proof, and the burden of evidence — i. e., the duty of producing countervailing testimony (see Chamberlayne’s Evidence, § 930 et seq.); but, when the burden of proof is fixed by examination of the pleadings, it does not change, for, as was said in Heinemann v. Heard, 62 N. Y. 455:

“During tlie progress of the trial it often happens that a party gives evidence tending to establish his allegation, sufficient it may he to establish it prima facie, and it is sometimes said the burden of proof is then shifted. All that is meant by this is that there is a necessity of evidence to answer the prima facie ease, or it will prevail; bút the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial.”

It was this rule, or rather this familiar statement of it, which suggested the quoted remark of the lower court, though it was somewhat inaccurate to say that the burden of proof was upon the plaintiff because the plaintiff brought the suit. It is generally true that the pleadings leave the affirmative of the issue on the plaintiff, and that in the absence of any evidence the plaintiff must suffer defeat; but any plea of the nature of confession and avoidance as plainly puts the burden upon the defendant.

[4] The faulty statement of rule just mentioned would be a matter of no importance, but the difficulty with this case is that the pleadings of the parties are wholly irresponsive to the issues actually made. The case was not tried on the pleadings as written and served, but upon what amounted to oral pleadings made shortly after the trial began, and upon the very proper insistence of the trial court that the issue be simplified. Totally abandoning the answer served, the defendant confessed that it was liable, and liable upon the contract of September 1, 1915, for everything except one bill or item, and there was nothing in the nature of the charge set forth in that item, which in the nature of things took it out of the September contract; therefore defendant undertook to prove the December contract. The trial court would have been justified in withdrawing a juror, and compelling an amendment in order that defendant might plead according to its statement in open court, and in a manner technically justifying the proof it proceeded to offer.

[5, 6] The contract of September 1st in its language covered all advertising, and it was incumbent upon defendant to allege as well as prove that one particular bill had been contracted outside of that agreement. If the written - pleading had justified the course of trial, the issue would have been plain; ' i. e., defendant admitted or confessed the force and effect of the contract of September 1st, but alleged an exception thereto. This was done by what we call an •oral pleading, i. e., allegations by word of mouth, and such allegations framed the issue. Upon such an issue the affirmative, and therefore the burden of proof, was upon defendant; and this was the only issue that finally went to the jury.

Daxity of pleading and carelessness in detail cannot be used to. either vary the rule or escape its operation. The case must be treated on this record as if the pleading had been regular. It is settled that the burden is on him who alleges any modification of the contract in suit. Denney v. Stout, 59 Neb. 731, 82 N. W. 18; Appeal of Kenney (Pa.) 12 Atl. 589; Anderson v. English, 121 Ala. 272, 25 South. 748. And see Banewur v. Levenson, 171 Mass, at page 12, 50 N. E. 10. In this case defendant finally alleged, not a modification, but a new and separate agreement. The burden was plainly on defendant.

Judgment reversed, with costs, and new trial ordered.