Looney v. Potts

Humphreys, J.

This is a suit for money alleged to have been obtained by appellants from appellee, through deceit and fraud, by writing a. check for $125 more than was intended. It was alleged that appellee could not read, but had learned to write his name; that he loaned appellants $350, for which .amount they executed a note to him, and he, not being able to write, requested J. W. Looney, to draw a cheek for the amount, which he signed, thinking it was drawn for$350; that, several months thereafter, he had his bank book balanced, and discovered that the check had been drawn for $475.

Appellants filed an answer denying that the check was drawn for more than intended, but alleging that it was drawn as directed by appellee to cover the loan of $350 and an item of $125 in cash which was advanced at the time by appellants to appellee.

The cause was submitted to the court, sitting as a jury, upon the pleadings and testimony, which resulted in a special finding that- the testimony introduced by the respective parties responsive to the issue joined was equally balanced, and a declaration of law that, while the burden of the whole case rested upon appellee, the burden shifted to appellants to show payment of the check when they admitted that they had received a check for the amount of $475. Being guided by this declaration of law, the court rendered a judgment against appellants for the amount claimed, from which is this appeal.

In maldng the declaration of law as to where the burden of proof rested, which served as. a guide in reaching the verdict, the court confused the gist of this suit, which was for deceit and fraud, with a suit for debt and plea of payment. This was not a suit upon a. check to which a plea of payment had been interposed, but was a suit by appellee against appellants to recover $125 alleged to have been obtained through their deceit and fraud. This character of case comes within the, statute which places the burden of proof “on the party who would be defeated if no evidence were given on either side.” Section 4113 of Crawford & Moses’ Digest.

On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial.