Jones v. Durham

• Decision Date: 15 April 1902
• Citation: 67 S.W. 976,94 Mo. App. 51
• Parties: JONES v. DURHAM.
• Court: Missouri Court of Appeals

67 S.W. 976

94 Mo. A. 51

JONES v. DURHAM.

Court of Appeals of St. Louis, Missouri.

April 15, 1902.

PAYMENT — BURDEN OF PROOF — ISSUES — INSTRUCTIONS — PREPONDERANCE OF EVIDENCE.

1. The defendant in an action commenced in justice court for $50 borrowed money did not file an answer, but testified that he had borrowed $50 from plaintiff at one time, which had been repaid. The plaintiff claimed that such sum was not the debt for which action was brought, and defendant testified that he had no recollection of borrowing other money from plaintiff. Held, that defendant's testimony was not an admission of having borrowed the money, which would relieve plaintiff of the burden of proving such fact.

2. An instruction that plaintiff has the burden of proving his case by a preponderance of the evidence is not erroneous, in failing to define the phrase "preponderance of the evidence," unless it is clearly used in a misleading context.

Appeal from circuit court, Newton county; Henry C. Pepper, Judge.

Action by Newton E. Jones against Thomas B. Durham. From a judgment for defendant, plaintiff appeals. Affirmed.

James H. Pratt, for appellant. White & Clay, for respondent.

GOODE, J.

Plaintiff sued the defendant before a justice of the peace on the following account:

                           Neosho, Missouri, May 27, 1901
                 Thomas B. Durham to Newton E. Jones, Dr
                To use of hayrake two years, 1897 and
                 1898, at $1.50 ........................  $ 3 00
                To money loaned, check given November
                 3, 1898 ...............................   50 00
                To interest on same to May 27, 1901 ....    7 70
                To use of fanning mill, 1899 ...........    5 30
                To balance on wheat, 1899 ..............    1 90
                To use of wagon six months, 1899 .......    3 00
                To two balls of twine, five pounds each
                 1899 ..................................    1 20
                To use of horse, 1899 ..................    1 00
                To one lock, 1901 ......................      50
                                                          ______
                   Total ...............................  $73 60
                

The testimony of the plaintiff tended to prove he lent the defendant $50 on the 3d day of November, 1898 giving him a check therefor on the Neosho Savings Bank, payable to the order of T. B. Durham or bearer, and on different dates he loaned the farming implements mentioned in the account to the defendant, intending to charge for the use of them. As to the lock, that was mislaid by the defendant, and, plaintiff says, was never found. The evidence for the defendant was that, while he had borrowed a little money on two or three occasions from the plaintiff, he had no recollection of getting the $50 sued for, and that he had fully repaid plaintiff all he ever borrowed, — every cent. He testified the farming tools were lent gratuitously, as country neighbors are accustomed to do, and that he merely mislaid the lock one day while he was getting some corn he had bought out of plaintiff's crib, and did not know whether it was afterwards found or not. This is plainly a spite suit, and the evidence fully warranted the verdict the jury returned in favor of the defendant.

The only error assigned is in regard to an instruction given by the circuit court on the burden of proof, which was as follows: "The court instructs the jury, as a matter of law, that the burden of proof is on the plaintiff, and it is for him to prove his case by a preponderance of the evidence. If you find that the evidence bearing upon plaintiff's case evenly balances, or that it preponderates in favor of defendant, then plaintiff cannot recover." The instruction is attacked on three grounds, which we will notice in their order:

The first is that it told the jury, without limitation, that the burden of proof was on the plaintiff, whereas, as to the $50 item, the defense made was in the nature of a plea of payment, and as that plea admitted, in effect, that the defendant borrowed the money, the burden was on him to show he paid it back. The case having originated before a justice, no answer was filed or required, and no issues joined, so whatever formal defense was preferred to said item was by the testimony of the defendant. But the defendant did not admit borrowing the money. On the contrary, the purport of his testimony was that he did not get it. He admitted borrowing $50 from the plaintiff on one occasion, and giving his note for the debt, but said he afterwards paid the debt and took up his note. Jones claimed this was not the loan sued...