Midland Oil & Royalty Co. v. Schuler, 8109

Decision Date21 January 1964
Docket NumberNo. 8109,8109
PartiesMIDLAND OIL AND ROYALTY COMPANY, Inc., Plaintiff and Respondent, v. Ben SCHULER, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. In an action to recover money alleged to have been loaned to defendant, evidence that defendant borrowed money from another, although plaintiff's check was received in payment, tending to disprove plaintiff's claim that it loaned the money to the defendant, is admissible under a general denial.

2. It is error for the court in its charge to place the burden upon the defendant to prove a general denial in suit to recover for money lent.

3. In a suit for money lent, the plaintiff has the burden of proof. It does not shift but must be carried by the plaintiff throughout the case.

4. Where defendant in answer to a complaint for money lent pleads he did not borrow the money from the plaintiff but from another, and the debt to the other has not matured, he has not pleaded an affirmative defense but a denial. It is merely an attempt to traverse the allegations of the complaint.

5. Where a defendant in a suit for money lent pleads a matter which he could prove under a denial, he does not assume the burden of proof as to such matters.

Vogel, Ulmer & Bair, Mandan, for defendant and appellant.

Gallagher & Hodny, Mandan, for plaintiff and respondent.

TEIGEN, Judge.

The plaintiff, Midland Oil and Royalty Corporation, seeks to recover from the defendant, Ben Schuler, $5,000, plus interest which it alleges it loaned the defendant on May 19, 1961.

The defendant in his answer denies he is indebted to the plaintiff and alleges that on or about May 19, 1961, he borrowed the sum of $5,000 from one Harry Berg personally on the express condition that the said sum would be repaid out of, and only out of, earnings from the $10,000 investment in Globe Petroleum Company Unit A, an investment sold to the defendant by the said Harry Berg and others, and that said amount is not due because the defendant has received no earnings from the investment. He alleges he has no information as to the ownership of any claim against him by the plaintiff.

The case was tried to a jury. It returned a verdict in favor of the plaintiff.

The defendant has appealed from the judgment specifying certain errors in the instructions.

The evidence establishes that Harry Berg was president of the plaintiff corporation, secretary-treasurer of Great Plains Royalty Corporation, and a partner in Globe Petroleum Company. All of these enterprises were in the business of purchasing oil royalties, minerals and leases. The defendant, although principally a farmer, had also been engaged as an oil broker for about ten years. He had dealt with all of these enterprises. He was a stockholder in the Great Plains Royalty Corporation. He had purchased a $10,000 investment unit from Globe Petroleum Company and he had been employed as a lease purchaser by the plaintiff corporation. All of these enterprises apparently were operated from a single suite of offices.

The Great Plains Royalty Corporation had held its annual stockholders' meeting. The defendant attended. After the meeting there was a conversation between the defendant and Harry Berg. There were no witnesses and nothing was reduced to writing. However, it is agreed by the defendant and Berg that the subject matter of the conversation involved a request for a $5,000 loan by the defendant. The conversation was very short but the participants do not agree as to the agreement that resulted. The defendant claims he arranged a loan from Harry Berg which would be repaid out of earnings from his $10,000 investment in Unit A purchased from Globe, although he admits Berg did not state from what source the money would be forthcoming. Berg claims the defendant wanted to borrow the money to buy some cattle in Montana and it was agreed the money would be repaid shortly, possibly in six weeks. He indicates the loan was made by the plaintiff corporation of which he was president.

Approximately a week or ten days later a check of the plaintiff corporation in the amount of $5,000 was mailed to the defendant. The check is in evidence. The defendant admits receiving it, endorsing it and depositing it to his account. He admitted he knew it was drawn on the plaintiff's corporate account. He acknowledges it is the money he borrowed but claims the loan was from Harry Berg personally, that he did not borrow money from the plaintiff corporation and is not indebted to it. He also claims the loan is not due because he has received no earnings from Globe. Thus the issues were framed.

The defendant has appealed from the judgment on the ground that the court has misdirected the jury with respect to the burden of proof. The court instructed the jury that the plaintiff has the burden of proof to prove the material allegations of its complaint. Immediately following this instruction, it instructed as to the defendant's burden of proof as follows:

'Likewise, the burden of proof is upon the defendant to prove to your satisfaction by a fair preponderance of the evidence the material allegations of his Answer. If the defendant sustains this burden, you will return a verdict in his favor dismissing plaintiff's cause of action against him.'

The foregoing paragraph of the instructions was immediately followed by this instruction:

'If neither the plaintiff nor the defendant sustain their burden as hereinabove outlined, you will return your verdict in favor of the defendant dismissing plaintiff's cause of action.'

The quoted instructions are specified as error.

Nowhere in its instructions does the court advise the jury of the material allegations of either pleading.

The plaintiff has the burden of proof throughout the case. It must prove by a fair preponderance of the evidence, to the jury's satisfaction, the material allegations of its complaint. The burden of proof does not shift. When the plaintiff has, by evidence, established a prima-facie case, the burden of going forward with...

To continue reading

Request your trial
11 cases
  • National Rifle Association v. Ailes, 79-342.
    • United States
    • D.C. Court of Appeals
    • March 5, 1981
    ...to the jury's satisfaction, the material allegations of its complaint. The burden of proof does not shift." Midland Oil and Royalty Co. v. Schuler, 126 N.W.2d 149, 152 (N.D.1964). The reason why "[l]itigants have a substantial right in having the burden of proof properly placed," Banks v. B......
  • Frank Stinson Chevrolet, Inc. v. Connelly
    • United States
    • South Dakota Supreme Court
    • April 16, 1984
    ...of an issue. County of Banner v. Young, 184 Neb. 546, 169 N.W.2d 280 (1969); Verschoor v. Miller, supra; Midland Oil and Royalty Co. v. Schuler, 126 N.W.2d 149 (N.D.1964). The test for determining which party has the affirmative of an issue, and therefore the burden of establishing a case, ......
  • Estate of Hill, Matter of
    • United States
    • North Dakota Supreme Court
    • November 9, 1992
    ...and foremost, Pijan had the burden of proving the claim of an oral contract by a preponderance of the evidence. Midland Oil & Royalty Co. v. Schuler, 126 N.W.2d 149 (N.D.1964). The evidence to support the claim must have produced the stronger impression and be more convincing when weighed a......
  • Linington v. McLean County
    • United States
    • North Dakota Supreme Court
    • September 24, 1968
    ...to the party having the burden of proof. This process continues until the stock of relevant facts is exhausted. Midland Oil & Royalty Co. v. Schuler, N.D., 126 N.W.2d 149; Guild v. More, 32 N.D. 432, 155 N.W. 44. The instruction, insofar as it places the burden of proof upon the defendant t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT