Postlewait v. Higby , 1898 Ill. App. LEXIS 808 ( 1899 )

Mr. Justice Adams

delivered the opinion of the court.

The main contention of appellant’s counsel is, that appellant having proved that appellant’s solicitor represented to him that appellee had an arrangement with thirty leading hotels in Chicago, as mentioned in the foregoing statement, the burden was on appellee to prove that he had such an arrangement, and not on appellant to prove the contrary, viz., that appellant had no such arrangement; that appellant was not bound to prove a negative. We do not understand that the burden of proof depends upon the form of a proposition, but that the burden is on him asserting the proposition, as a cause of action or as a defense, whether the proposition asserted is affirmative or negative in form. A recent author says :

“ It is reasonable that the one who asserts a fact necessary to the claim, or defense, should prove such fact, and in the great majority of cases it will be found that the fact to be proved is affirmative in form. But it is well settled that whoever asserts a claim or a defense which depends upon a negative must, as in other cases, establish the truth of the allegation by a preponderance of evidence.” 1 Jones on Evidence, Sec. 178, citing numerous cases in support of the text.

The burden of proof is on him who has the affirmative of the issue, but there is an obvious distinction between the affirmative of the issue and the affirmative of the question. The affirmative of the issue is with him who affirms or asserts a matter in support of his claim or defense, regardless of whether he affirms or asserts the affirmative or negative of the question at issue.

In the present case appellant claims that the alleged representation was false; that appellee had no such arrangement as represented, and he so claims as matter of defense. We think it clearly incumbent on him to prove this claim. He has the affirmative of the issue.

Egbers v. Egbers, 177 Ill. 82, was a bill filed to set aside a will. One of the allegations was that the supposed testatrix never signed the will; another that she was of unsound mind, mentally incapable of making a will. The court held that the burden was on the complainant attacking the will to prove these allegations. The court say:

“ Generally speaking, the burden of proof, in the sense of the duty of producing evidence, passes from party to party as the case progresses, while the burden of proof, meaning the obligation to establish the truth of the claim rests throughout upon the party asserting the affirmative of the issue, and unless he meets this obligation upon the whole case he fails. This burden of proof never shifts during the course of a trial, but remains with him to the end.”

The notice of special matter contains this :

“ The defendant will give in evidence that said Unique Printing Company had no such contract with said thirty leading hotels, nor with either of them,” etc.

But counsel contend that slight proof of a negative may be sufficient, if it be within the power of the adverse party to prove the affirmative, if such proof be possible. This may be conceded, and yet appellant must fail, because he produced substantially no proof whatever of the falsity of the alleged representation. Appellant’s testimony was that appellee’s solicitor said to him, “We have an arrangement with thirty leading hotels of Chicago,” etc.

How an arrangement may, or not, be a contract; it certainly is not ex vi termini. It is obvious, then, that the testimony of some of the witnesses that several hotels, had no contract with the appellee is not relevant to the question. The testimony of Mullin that certain parties told him they had no contract with appellant, besides being irrelevant, was mere hearsay, which the trial judge had the right to ignore, and doubtless did ignore. Her. Des. Trans. Co. v. Joesting, 89 Ill. 152.

It can not be said that it was not in appellant’s power to ascertain what, if any, arrangement appellee had with the hotels which received the “ Rules, Regulations and Law Banners,” had he exercised reasonable diligence. It appears by his own signature on the instrument, that the hotel receipts were submitted to him December 10,1892, and he admitted to the witness Brant that they were submitted to him. Having the hotel receipts before him, it would have been easy for him to ascertain whether appellee had any, and if so what, arrangement with the hotels. He very frankly says, in his testimony, “ I must admit carelessness.” By his contract he was not bound to pay anything until the receipts were produced, and the fact that he did pay is itself evidence that they were produced.

Appellant’s counsel further contend that the alleged representation of appellee’s soliciting agent was part of the consideration for appellant’s undertaking, and must be read into the contract. It would follow logically from this proposition, if sound, that it would devolve on appellee to prove the truth of the alleged representation. We can not agree with this contention. Appellee’s undertaking and obligation, as shown by the contract, was to publish appellant’s card, to occupy one-third square on 5,000 Rules, Regulations and Law Banners for one year’s use in thirty hotels, etc., and this undertaking or obligation can not be added to or in any way modified by verbal testimony, under the specious pretense that the undertaking of appellee was the consideration for appellee’s promise, and therefore it may be shown that there was another and different consideration. If the contract in question could be so modified, it is difficult, if not impossible, to conceive of any contract in writing which could not be modified in its essential and material terms by parol evidence. The cases cited by appellant’s counsel in support of this contention do not support it.

It is contended that the instrument in question was not admissible in evidence under the common counts; also that the court treated as evidence certain receipts produced on the trial and offered, but not admitted in evidence. The contract was proper evidence under the common counts. It appears that the court, during the trial, read a document which, in form, is a receipt, without any signature thereto. The receipts produced are not in the bill of exceptions, which purports to contain all the evidence, which being the case, we do not understand how it can be said that the court treated them as evidence. The mere reading by the court of a document offered in evidence is not error.

We find no reversible error in the record. The judgment is affirmed.