Stevens v. Stephens

• Decision Date: 15 October 1896
• Docket Number: 718
• Citation: 47 P. 76,14 Utah 255
• Court: Utah Supreme Court
• Parties: SIDNEY STEVENS, APPELLANT, v. W. J. STEPHENS ET AL., RESPONDENTS

47 P. 76

14 Utah 255

SIDNEY STEVENS, APPELLANT, v. W. J. STEPHENS ET AL., RESPONDENTS

No. 718

Supreme Court of Utah

October 15, 1896

Appeal from the Second district court, Weber county. Hon. H. H Rolapp, Judge.

Action by Sidney Stevens against W. J. Stephens and and S. C Stephens, doing business under the firm name of Stephens Bros. Verdict for defendants and plaintiff appeals.

Reversed and remanded.

L. R Rhodes, for appellant.

E. M. Allison, Jr., for respondents.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This is an action upon an account for goods sold and delivered. At the trial the jury returned a verdict of "No cause of action," and this appeal is from an order denying a motion for a new trial. It is alleged in the complaint substantially, that the defendants are co-partners doing business under the firm name of Stephens Bros., and are indebted to the plaintiff in the sum of $ 2,277.65, balance due upon an account for goods, wares, and merchandise sold to them at their special instance and request, at Ogden City, between May 1 and September 5, 1892, and that the same became due and payable on the last-named day. The answer denies specifically all the allegations of the complaint, and then, in substance, alleges affirmatively that, when goods in question were bought, the plaintiff and the defendants were directors in four corporations, the plaintiff having also been president of three of them, and that the defendants were the active business managers of said corporations; that as such managing agents they ordered the goods in question for said corporations; that at the time the plaintiff furnished said goods he knew they were being furnished for the corporations, and furnished them with the intent to aid them; and that no part of them was received by the defendants or ordered by them, except as such agents and managers. At the trial, counsel for the plaintiff requested the court to rule that under the pleadings the burden of proof was on the defendants, but the court held that the burden of proof was on the plaintiff, and so instructed the jury. This action on the part of the court is set out as one of the causes of complaint. It is quite clear that both counsel and court were in error. As an abstract proposition of law, the statement of the court to the jury that "the burden of proof is upon the plaintiff, and he must establish, by a preponderance of the...