Mitchell v. Mitchel

Opinion by

Mr. Justice Trunkey:

The only issue of record, and the only one tried, was raised by the denial of the plea of payment. Were the evidence in support of the plea and the opposing evidence so evenly balanced that the jury could not determine which preponderated, the defense would fail. Unless the jury could find affirmatively from the weight of the evidence that the debt was paid, the plaintiff would be entitled to recover.

Upon the question of payment there was oath against oath; the verdict would not convict either party of perjury. If the jury found that the plaintiff executed the receipts they were prima facie evidence of payment; otherwise, no evidence at all. If he executed them, they were not conclusive, for they might be overcome by testimony. But if the defendant failed to satisfy the jury that the plaintiff executed the receipts, it did not follow that he forged them. Nor was a question of fraud raised, except such as exists where a man alleges that he has paid a debt for which he is sued. He may, in truth, allege payment, and yet fail to prove payment to the satisfaction of a jury. Where the plaintiff denies the allegation of payment, no burden is cast upon him to prove that the defendant has committed fraud or forgery. The burden is on the defendant to establish the alleged payment; and whether he suceeds or fails, the verdict is no evidence that he is guilty of forgery or fraud.

The learned judge of the common pleas, after remarking that the defendant sets up actual payment and produces the receipts, with his own testimony, to show it, and that the plaintiff alleges that the receipts are false and the setting them up is a forgery and fraud, thus instructed the jury:

“It is a familiar principle of law that frauds are not to be presumed or sustained by mere suspicion, but to be proven, like other allegations and issues tried in our courts. While the presumption of innocence prevails to start upon, fraud or forgery or imposition when set up as a defense or ground of interference for relief in our courts, if not proven by direct and positive evidence, may be inferred from facts, satisfactorily proven, which lead to that conclusion. If, then, the facts proven and circumstances naturally connecting themselves around them and flowing from them lead the jury to a conviction or to a conclusion in their minds that, surveying the whole of the testimony, the weight of it satisfies them it has been established, that is what is to control them. ...

“Notwithstanding fraud may be alleged, yet a jury in passing upon it through the weight of evidence, while the proof to establish it is not required to be such as to produce an absolute certainty, yet before a jury can find it they should find that it .is established by the weight of the evidence — that the facts bearing upon the case and the precise issue trying and satisfactorily proven, and the natural inferences from them, lead to the conclusion that the fraud alleged was practised. If a conclusion is thus arrived at through the convincing weight of the testimony, it is the duty of the jury to pronounce it by their verdict, no matter how unpleasant it may be. If the weight >of the evidence does not satisfy the jury, their verdict should be against the fraud set up as a defense or means of relief.”

All that would have been fitting instruction had it been necessary for the plaintiff, in order to rebut the defendant’s case, to establish forgery or fraud. But he had no such task. If the jury could not find from the weight of the testimony that he •executed the receipts, it was their duty to reject them as evidence. That the plaintiff’s testimony was sufficient to warrant 'the court to allow the receipts to go to the jury, in nowise relieved them from determining upon all the evidence whether the ■receipts were given by the plaintiff. The plaintiff asserted no -device, trick, or imposition by which he was induced to give the receipts, nor did he pretend that they were obtained from him "by fraud. If, indeed, he had in effect conceded the execution, and sought to avoid them for fraud by the defendant, which in•duced the giving them, the instruction would have been pertinent .•and free of error.

The portion of the charge assigned as erroneous placed the •onus on the plaintiff to overcome the receipts by “convincing weight of testimony” that the defendant procured the receipts from him by fraud. In the absence of testimony that imposition or trick was practised to induce the plaintiff to give the receipts, though he denied the giving of them, under the instruction the jury would consider them as evidence. The charge •■should have placed the burden on the defendant, to satisfy tire jury by the weight of evidence that the plaintiff executed the ■receipts; if not so satisfied, to throw them out of consideration :as evidence; if so satisfied, then consider them as evidence; and ■that the burden was on the defendant, by preponderance of all the evidence in the cause, to satisfy the jury that the debt was ■paid.

The assignment of error must be sustained, for the instruction •complained of was misleading. The error was not corrected fin any part of the charge. Were the instructions not erroneous as applied to the issue, there would be uo ground for reversal. No request was made to the court to instruct the jury respecting the burden of proof, and in absence of such request, what was left unsaid respecting that matter is not a subject for complaint.

Judgment reversed, and a venire facias de novo awarded.