Terryberry v. Woods

• Decision Date: 31 October 1896
• Citation: 37 A. 246,69 Vt. 94
• Parties: TERRYBERRY v. WOODS.
• Court: Vermont Supreme Court

37 A. 246

69 Vt. 94

TERRYBERRY

v. WOODS.

Supreme Court of Vermont. Bennington.

Oct. Term, 1896.

Exceptions from Bennington county court; Start, Judge.

Assumpsit in the common counts by Emma Terryberry against Edward D. Woods. Pleas, general issue, payment, and offset. There was judgment on a verdict for plaintiff, and defendant excepted. Affirmed.

The plaintiff sought to recover $1,000 and interest, which she claimed the defendant had collected for her, and failed to pay her on request. The verdict was for the full amount. The defendant claimed that he had paid $500 on one occasion to the plaintiff herself, and $250 on another occasion to the plaintiff's mother for the plaintiff; and introduced receipts for such payments, purporting to be signed by the plaintiff and her mother respectively. The plaintiff denied the payments and the giving of the receipts, but did not deny the genuineness of the signatures. The defendant requested the court to charge — First, "if the plaintiff signed the receipt for live hundred dollars, it is prima facie proof that she received the money from the defendant, and the burden of proof is on the plaintiff to show that the defendant did not pay the five hundred dollars as he claims," and, second, "if the plaintiff's mother signed the receipt for two hundred and fifty dollars, the burden of proof is on the plaintiff to show that the defendant did not pay the money expressed therein to her." The court declined to charge in accordance with either request, but told the jury that the burden was upon the defendant to prove the allegation of payment. No exception was taken to the charge as given.

F. S. Piatt, for plaintiff.

Batchelder & Bates, for defendant.

TAFT, J. The burden of proving a fact alleged in a judicial proceeding is upon the person making the allegation, and this burden of proof, as it is called, never changes, but remains upon the alleging party throughout the trial. As the testimony upon the trial is introduced, the weight of the evidence may vary from side to side, but the burden of proof remains upon the one making the allegation. The defendant pleaded payment, and by so doing assumed the burden of proving it. The defendant was not entitled to binding instructions upon a portion of the evidence applicable to a single question. The request was properly denied. The instructions, as given, are not in question. Judgment affirmed.