Abhau v. Grassie

• Decision Date: 23 April 1914
• Docket Number: No. 9129.,9129.
• Citation: 262 Ill. 636,104 N.E. 1020
• Parties: ABHAU v. GRASSIE.
• Court: Illinois Supreme Court

262 Ill. 636

104 N.E. 1020

ABHAU

v.GRASSIE.

No. 9129.

Supreme Court of Illinois.

April 23, 1914.

Appeal from Superior Court, Cook County; William E. Dever, Judge.

Bill of complaint by John Abhau against James E. Grassie and others to enforce a mechanic's lien. From a decree upholding the lien, the defendant Grassie appeals directly to the Supreme Court. Cause transferred to the Appellate Court.Jule F. Brower and Samuel B. King, both of Chicago, for appellant.

Robert W. Dunn, of Chicago, for appellee.

CARTER, J.

Appellee, John Abhau, a building contractor, filed his bill of complaint in the superior court of Cook county to enforce a mechanic's lien on certain property in they city of Chicago, alleging a contract made with Ida Rahn, the owner of the property, making a defendant, among others, James E. Grassie, trustee under three trust deeds on said property and owner of the three notes secured thereby. Grassie answered, setting up, among other defenses, that Abhau had not taken out a license as contractor, as required by a certain ordinance of the city of Chicago. A decree was entered upholding appellee's right to a mechanic's lien on the property. The chancellor below certified that the validity of said ordinance was in issue, and that the public interest demanded that the appeal go direct to this court.

Appellant claims that said decree can only be sustained under section 4 of the Mechanic's Lien Law, and that said section, as applied to the facts in this case, is unconstitutional.

[1] While other persons appeared in the court below, the only parties that appear to be interested in this appeal are appellee, Abhau, and appellant, Grassie. No evidence is found in the record as to whether or not said Abhau had a contractor's license, as required by said city ordinance, and no proof was offered by either party on that subject. Counsel for appellee contends that the ordinance in question is invalid, but argues further that, conceding its validity, the burden of proving that Abhau had not procured such a license rested upon appellant, while appellant contendsthat on the peculiar facts herein shown the burden of proof rested upon Abhau to show that he had such a license. The general rule is that the burden of proof rests upon the one who substantially asserts the affirmative of the issue-that is, upon the party who would be defeated if no evidence at all were offered. Stephens v. St. Louis Union Trust Co., 260 Ill. 364, 103 N. E. 190; 1 Greenleaf on Evidence (16th Ed.) § 74. The burden of proof does not depend upon the form of the proposition. The weight of authority is that whoever asserts a claim or defense which depends upon a negative must establish the truth of the allegation (Jones on Evidence [2d Ed.] § 179), for that particular fact is essential to his case (2 Chamberlyne on the Law of Evidence. § 984). It is, however, sometimes stated that, where the subject-matter of a negative averment lies peculiarly within the knowledge of the other, the averment is taken as true unless it is disproved by that other party. 1 Greenleaf on Evidence (16th Ed.) § 79; Kettles v. People, 221 Ill. 221, 77 N. E. 472. It is not easy to lay down a general rule by which it may be readily determined upon which party the burden of proof will lie when a negative is averred in the pleading. Each case depends upon its own peculiar circumstances. ‘Courts must apply practical common sense in determining the question. When the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative; but when the opposite party must, from the nature of the case, be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party thus in the possession of the proof should be required to adduce it,’ or it will be presumed that it does not exist. Great Western Railroad Co. v. Bacon, 30 Ill. 347, 83 Am. Dec. 199. See 4 Wigmore on Evidence, § 2486.

[2][3] The authorities are not all in harmony as to who has the burden of proof on the question whether one of the parties is duly licensed to practice a certain profession or to do a certain class of business. Leggat v. Gerrick, 35 Mont. 91, 88 Pac. 788,8 L. R. A. (N. S.) 1238, and note. Where the question arises directly on an indictment, or, in a penal action for violating the statute, where the prosecution is on behalf of the public, the authorities all agree that the burden of proof rests upon the defendant. Prentice v. Crane, 234 Ill. 302, 84 N. E. 916; Kettles v. People, supra; Williams v. People, 121 Ill. 84, 11 N. E. 881;Noecker v. People, 91 Ill. 468; 1 Phillips on Evidence (Edwards' 5th Am. Ed.) *822, note 8; 2 Ency. of Evidence 804, and cases cited. The weight of authority, however, is to the effect that, where the question of such a license is only collaterally involved, the license will be presumed unless proof to the contrary is presented by the other party. McPherson v. Cheadell, 24 Wend. (N. Y.) 15;Smith v. Joyce, 12 Barb. (N. Y.) 21;Thompson v. Sayre, 1 Denio (N. Y.) 178;Brown v. Young, 2 B. Mon. (Ky.) 26;Horan v. Weiler, 41 Pa. 470. The courts have also usually held that a defense against foreign corporations suing in the state, based on noncompliance with acts as to foreign corporations, is an affirmative one; the burden of proving noncompliance resting upon the person asserting it. Chickering-Chase Bros. Co. v. White, 127 Wis. 83, 106 N. W. 797;Langworthy v. Garding, 74 Minn. 325, 77 N. W. 207;Northup v. Wills Lumber Co., 65 Kan 769, 70 Pac. 879. In Natural Carbon Paint Co. v. Bredel Co., 193 Fed. 897,144 C. C. A. 111, it was said that this rule was in conformity with the general, settled principles of pleading and practice, and was unaffected by the terms of the Illinois statutes on that question.

We find no case in this court in which the question of the burden of proof as to conformity with the law has been considered...