Miller v. Snyder
| Decision Date | 07 July 1910 |
| Citation | 129 S.W. 1073,149 Mo.App. 97 |
| Parties | ARVILLUS N. MILLER, Respondent, v. WILLIAM H. SNYDER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.
Judgment affirmed.
Meredith & Ing for appellant.
(1) Where a defendant denies an allegation material to the plaintiff's case, the burden is on the plaintiff to establish its truth, whether the action be in contract or in tort. 16 Cyc. 928; Merchant v. Manion, 97 Ill.App 43; Piper v. Matkins, 8 Kan.App. 215; Kenton Ins. Co. v. Osborne, 51 S.W. 306; Ford v. Oil Co., 32 N.Y. App. 596, 53 N.Y.S. 48; 1 Greenleaf on Evid., 107; State to Use v. Martin, 18 Mo.App. 468; McCartney v. Insurance Co., 45 Mo.App. 373; Turner v. Overall, 172 Mo. 289; Long v. Long, 44 Mo.App. 141.
Abington & Phillips and Ernest A. Green for respondent.
(1) The judgment was for the right party, and the demurrer to the evidence was properly overruled. The appellant having failed to pay the full amount of lumber due under the contract, and having failed to fully perform the contract, was liable for the balance of the purchase price under the contract. Sutter v. Raeder, 149 Mo. 297; St. Louis v Packet Co., 214 Mo. 638; Merritt v. Matchett, 135 Mo.App. 176; Fassbinder v. Railroad, 126 Mo.App 563; Luehrmann v. Laclede Gas Light Co., 127 Mo.App. 213. (2) Plaintiff's instruction No. 1 was a correct one. The burden of proving payment is always upon the party asserting the same. 9 Cyc. 759, 761; McGregory v. Prescott, 5 Cush (Mass.) 67; Van Gieson v. Van Gieson, 12 Barb. (N.Y.) 520; Douglass v. Land Co., 12 West Va. 502; Oil Well Supply Co. v. Wolfe, 127 Mo. 616; Griffith v. Creighton, 61 Mo.App. 1; Hutchinson Mfg. Co. v. Henry, 44 Mo.App. 263; Yarnell v. Anderson, 14 Mo. 619; Ferguson v. Dalton, 158 Mo. 323; Trimble v. Moore, 125 Mo.App. 601; Bahrenburg v. Fruit Co., 128 Mo.App. 526; Christianson v. McDermott Estate, 123 Mo.App. 448.
This is an action begun in the circuit court of Butler county, by plaintiff, to recover from the defendant the purchase price of certain personal property sold under a written contract executed between the parties. By the terms of a bill of sale, the plaintiff sold and delivered to the defendant, his interest in six head of mules and other personal property. The defendant agreed to pay for the property $ 58,000 feet of one-inch gum lumber. The defendant was to pile the lumber in the mill yard at Ash Hill, on or before March 1, 1908. The bill of sale was executed on the 14th day of November, 1907.
The petition alleged the making of the contract, the delivery by plaintiff of the mules and other property to the defendant; that defendant had only delivered 47,806 feet of the lumber, and there was still due plaintiff the balance of the lumber of the value of $ 101.94.
The answer admitted the purchase of the property from plaintiff and the agreement to pay therefor 58,000 feet of lumber, and affirmatively alleged that the defendant had delivered to the plaintiff the full 58,000 feet of lumber, and therefore had fully paid for the property purchased.
The plaintiff testified that about a year after the lumber was delivered, he had it measured, and there was only 47,806 feet, and that the difference between that and the amount to be delivered was of the value of $ 101.94. The evidence also showed that a small shrinkage by reason of drying, might take place during the time it is admitted the lumber was on the yard before plaintiff had it measured. The defendant tried to show that some of the lumber had been taken away, but plaintiff denied that more than thirty-five feet had been taken from the yard. The defendant testified that he delivered on the yard the full amount of lumber named in the contract, and in this he was corroborated by other witnesses.
The court, in behalf of the plaintiff, told the jury that the burden was upon the defendant to prove he had paid the debt due plaintiff by delivering to him 58,000 feet of lumber, according to his contract. To the giving of this instruction the defendant objected and saved his exception. The defendant was given the right to open and close the argument over the objection of the plaintiff. The jury returned a verdict in favor of the plaintiff, in the sum of $ 97.21, and defendant appealed from the judgment rendered on that verdict.
There are but three points to be considered on this appeal. First, the respondent claims that the appellant's abstract of the record does not comply with the law and rules of this court, and on that account, the matters complained of by defendant are not before us for review.
While the abstract of the record does not in all things comply with the law and rules of this court, as declared in former decisions, we do not believe the omissions are of sufficient importance to justify us in refusing to consider the case on the merits.
The plaintiff having testified that only 47,000 feet of the lumber was delivered, and that this was shown by actual measurement made about one year after the lumber had been delivered, and in the meantime only about thirty-five feet had been removed, his evidence was sufficient to take the case to the jury, and if defendant had offered no testimony it...
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