Moffatt v. Moffett

• Decision Date: 07 February 1894
• Citation: 57 N.W. 954,90 Iowa 442
• Parties: F. I. MOFFET v. HORACE MOFFET, Appellant
• Court: Iowa Supreme Court

57 N.W. 954

90 Iowa 442

F. I. MOFFET v. HORACE MOFFET, Appellant

Supreme Court of Iowa, Des Moines

February 7, 1894

Appeal from Cedar District Court.--HON. JAMES D. GIFFEN, Judge.

AN ACTION to recover the value of five hundred and twenty-three bushels of corn, taken by the defendant from plaintiff's farm in Cedar county. From a judgment below for the plaintiff, the defendant appealed.

Reversed.

Wolf & Hanley and R. G. Cousins for appellant.

Wheeler & Moffit for appellee.

OPINION

GRANGER, C. J.

I.

The issues should be definitely understood, in order to properly consider the legal import of an instruction given by the court as to the burden of proof, of which complaint is made. In the petition, after stating that plaintiff owned the land where the corn was, it is stated "that defendant took from said cribs five hundred and twenty-three bushels of corn, the property of plaintiff, and of the reasonable market value of one hundred and twenty dollars and twenty-nine cents, and converted said corn to his own use, and refuses to pay plaintiff for the same; that there is now due plaintiff by defendant for said corn one hundred and twenty dollars and twenty-nine cents, no part of which has been paid, and interest thereon at six per cent;" then a prayer for judgment. The answer denies each and every allegation of plaintiff's petition, but admits that he purchased from one Ferguson, who had charge of the farm and property of this plaintiff, and was the authorized and acting agent of the plaintiff, five hundred bushels of corn at twenty-one cents per bushel; alleges the fact to be that he paid plaintiff's agent in full for all corn purchased; denies that he is indebted to plaintiff in any sum whatever. The answer admits receiving five hundred bushels of plaintiff's corn, and by way of affirmative defense it states that the corn was purchased of plaintiff's authorized agent, and payment was made to him therefor. These averments are considered as controverted without a reply. Code, section 2712; Bank v. Perry, 72 Iowa 15, 33 N.W. 341. Upon a proposition for judgment upon the pleadings, without evidence, the plaintiff would have been entitled to the value of the five hundred bushels of corn at twenty-one cents per bushel, for defendant admits receiving that much of plaintiff's corn of that value. To avoid this, he must show--what he averred--that Ferguson was an authorized agent for that purpose, and that payment was made to him. The only instruction by the court on the burden of proof is as follows: "(4) The plaintiff has the burden of proof, and it devolves on him to satisfy you of the truth of the material allegations of his petition by a fair preponderance of evidence; and if he has not done so you would find for defendant." It will be seen that the instruction deprives plaintiff entirely of the benefit of the admission in the answer, and required him to make proofs of the material allegations of his petition, or permit a verdict for defendant, when, without any proof, he was entitled to judgment. Nothing in the submission of...