Knoche v. Whiteman , 86 Mo. App. 568 ( 1901 )

ELLISON, J.-

This is an action begun before a justice of the peace to recover damages for the alleged conversion of an electric motor. Defendant prevailed in the circuit court whence the case had been taken on appeal.

Plaintiffs are the mortgagees of the motor, having taken the mortgage from one Eairman. The mortgage was duly recorded. Eairman as owner and mortgagor remained in possession and1 afterwards sold the motor to one Perry, subject to the mortgage. Perry afterwards sold the property to defendant, nothing being said as to the mortgage. Defendant refused to recognize plaintiffs’ claim under the mortgage and hence the present controversy.

There was no pleading in the cause, since it originated in the court of a justice of the peace. But the whole record shows that defendant .conceded and admitted the mortgage. Her defense was that plaintiff released the property from the lien of the mortgage so that defendant might purchase it, and this was the issue tried. In this state of the record the trial court gave the following instructions over the plaintiffs’ protest: “The jury are instructed, as a matter of law,, that the burden of proof is upon the plaintiffs, and it is for them to prove their case by a preponderance of the evidence. If you find that the evidence bearing upon the plaintiffs’ case is evenly balanced or that it preponderates in favor of the defendant, then the plaintiffs can not recover, and you should find for the defendant.”

Instructions are framed with reference to the hypothesis of facts which have been developed in evidence. They are addressed to the understanding of a jury and will be reviewed by an appellate court in the light of these rules. This instruction informed the jury that the burden in the issue before them was on the plaintiffs — that is to say, the burden of showing there was no release of the property rested with the plaintiffs and that therefore if the evidence on that issue was evenly balanced the verdict should be for defendant. This was clearly error. The burden on the only issue in the case was on defendant, for she introduced such issue by conceding what plaintiffs tendered as their title and avoiding it by an independent affirmative proposition of defense. It is not true, as contended by defendant, that the burden of proof never changes in a trial, and her chief authority in support of that proposition states the contrary and gives some plain illustrations thereof. Bunker v. Hibler, 49 Mo. App. 536, 543, 544. See, also, Kent v. Miltenburger, 13 Mo. App. 503. In the former case it is said that the burden never shifts so long as the evidence is directed to the same frofosition of fact. In this case the proposition of fact tendered by plaintiffs was the mortgage. No evidence was necessary to be directed to establish this proposition as it was conceded. But the proposition of fact tendered by defendant was that there was a release. This being a proposition on which plaintiffs took issue, the burden would not shift from the defendant. The ease of St. Louis Tow Co. v. Ins. Co., 52 Mo. 529, is a direct authority against defendant’s position. It is there held that the burden of proof is on a defendant who confesses and avoides the allegations of the plaintiff’s case.

In Bank v. Wood, 124 Mo. 72, the plaintiff claimed certain cattle under a certain chattel mortgage and the “defendant then undertook to defeat plaintiff’s title by showing that he was a purchaser under a prior mortgage. This title defendant affirmatively asserted in his answer and plaintiff denied in its reply. The proposition seems too plain to require argument, or citation of authorities, that one claiming title to personal property under a mortgage, must prove that the property mortgaged is identical with that claimed. The, rule would be the same whether the party claiming was a plaintiff or a defendant in the suiV’ (italics ours).

In Cox v. Railroad, 128 Mo. 362, the plaintiff sued for damages on account of defendants’ killing his cattle by running over and against them with its cars. The case conceded the killing by the defendant. Its own witnesses established that. But the defense was that the company could not fence its road at the point where the killing occurred on account of its proximity to a station making it dangerous to put in cattle guards. The court stated that “the burden of showing” this defense “devolved upon defendant.” The court went further in that statement than we need to go. Eor it had just said that plaintiff made a prima facie case by showing the killing, whereas, in point of fact, plaintiff’s case in that respect was, in effect, more than prima facie — it was conceded.

So it may be stated that where a plaintiff, holding an affirmative to establish his cause of action, brings a defendant into court who thereupon confesses or concedes plaintiff’s case as stated, but brings in affirmatively matter of defense to destroy that case, he relieves the plaintiff of the burden, in fact and in law, and takes it upon himself.

It seems that defendant does not claim that the mortgagee released the property personally, but that it was done through the mortgagee’s agent, authorized so to do. The burden is upon defendant, who asserts that proposition, to prove it. Johnson v. Hurley, 115 Mo. 513. And it may be stated here that evidence that the attorney was an attorney merely for collection of the mortgage debt, or that he was in possession of the mortgage and note, will not show authority to release the property without a payment of the debt. Something more must be given in evidence which will have a tendency to prove authority to release without payment.

The judgment will be reversed and the cause remanded.

All concur.