Frost v. Grimmer , 1911 Tex. App. LEXIS 704 ( 1911 )

On Motion for Rehearing.

Counsel for plaintiff in error very earnestly contend in their motion for rehearing that the court erred in his charge on the burden of proof. The point is made that the paragraph of the charge which submitted the defendant’s rights in the case was prefaced by the words, “If you believe from a preponderance of the evidence,” and that this placed the burden of proof upon defendant, which was error. We think perhaps we have failed to make clear the reasons which impelled us to the holding we made on this subject.

[8] The plaintiff alleged that he had made certain plans and specifications for the defendant, and under the testimony it was undisputed that he had done so. As the law would imply a promise to pay for such work done, it is clear that when plaintiff proved this much of his case he could have recovered upon it.

[9] The defense of the defendant was, in effect, in confession and avoidance, being to the effect that plaintiff did make such plans, etc., but that defendant was not to pay for them unless certain bonds were sold, and that the bonds had not been sold.

In this state of the record, we are of the opinion that the burden of proving that the plans were not to be paid for unless the bonds were sold was upon the defendant, and that the court did not err in so telling the jury. See Florida Club v. Lumber Co., 18 Tex. Civ. App. 161, 44 S. W. 10; Cherry v. Butler, 17 S. W. 1090; Holloman v. White, 41 Tex. 61.

Therefore the motion for rehearing is overruled.