
    [No. 3830.
    Decided February 7, 1901.]
    D. S. Johnston, Appellant, v. Thomas McCart et ux., Respondents.
    APPEAL-SUFFICIENCY OP EVIDENCE.
    It is a settled rule that the supreme court will not on appeal disturb a verdict, where the question of fact involved was properly submitted to the jury, although the court may believe the facts to be otherwise than as found.
    REPLEVIN-BURDEN OP PROOF.
    In an action of replevin to recover possession of goods sold under a contract in the nature of a conditional sale, the burden of proof is upon plaintiff to establish ownership and right of possession in himself, even although defendant, by an affirmative defense, sets up a plea of payment in full, since such plea in an action of replevin amounts to no more than an allegation of property in defendant, and adds nothing to the answer of general denial.
    EVIDENCE-VARIATION OP WRITTEN CONTRACT-CONTEMPORANEOUS ORAL AGREEMENT.
    Parol evidence is admissible for the purpose of showing that, by a contemporaneous oral agreement, a written contract between the parties providing for payments of money had been so far modified as to permit the stipulated payments to be rendered in services instead of money. .
    
      Appeal from Superior Court, Spokane County. — Hon. Leaedeb H. Pbatheb, Judge.
    Affirmed.
    
      Pritchard & Harvey, Mendenhall & Strong, and Jerry E. Bronaugh, for appellant: .
    This court has held that the defense of payment is new matter and must be affirmatively alleged by the defendant. Roberts v. Washington National Bank, 11 Wash. 550; Richards v. Jefferson, 20 Wash. 166. And it has also been decided by this court that the burden of proof rests upon the party, either plaintiff or defendant, who holds the affirmative of any proposition necessary to be established. Wright v. Stewart, 19 Wash. 179. See, also, the following very recent cases' supporting this contention: Turrentine v. Grigsby, 23 South. 666; Blass v. Lawhorn, 64 Ark. 466; Lakeside Press, etc., Co. v. Campbell, 22 South. 878; Harley v. Harley, 66 Ill. App. 138; Rhodes v. Webb-Jameson Co., 49 N. E. 283.
    
      Graves & Graves, for respondents:
    In actions of replevin the defendant may, under the general denial, introduce proof of any circumstance which tends to defeat the plaintiff’s right to possession when the action is commenced. It is not necessary for defendant to allege payment as an affirmative defense in order to prove the same upon the trial, and, therefore, in this case the burden of proof is not shifted from the appellant to respondents. Lillie v. Shaw, 22 Wash. 234 (60 Pac. 406); Chamberlin v. Winn, 1 Wash. 502; Fredericks v. Tracy, 33 Pac. 750; 2 Pomeroy, Remedies (2d ed.), § 678.
    While it is true, as a general rule, that parol evidence is inadmissible to contradict the terms of a written contract, it is consistent with the weight of modern authority to show that, at the time a written contract is made, a supplemental oral agreement was entered into between the parties to show how, and in what manner, payments were to be made under the contract; and this is true even though the express terms of payment are stated in the written contract. Buchanon v. Adams, 49 N. J. Law, 636 (60 Am. Rep. 666) ; Lynch v. Henry, 44 N. W. 837; Kane v. Cortesy, 100 N. Y. 132; Thomas v. Loose, 114 Pa. St. 35; Kullmans v. Lindsay, 114 Pa. St. 166; Edwalt v. Farlow, 62 Iowa, 212; Delaney v. Linder, 22 Neb. 274; Paul v. Owings, 32 Md. 402; Marsh v. Bellew, 45 Wis. 36; Phillips v. Preston, 5 How. 278 (12 L. ed. 152); Carr v. Dooley, 119 Mass. 294; 2 Jones, Evidence, § 507; Browne, Parol Evidence, pp. 128, 129.
   The opinion of the court was delivered by

Mount, J.

This action was brought to recover possession of a piano and for damages for its unlawful detention. The complaint alleges, in substance, that the appellant had agreed to sell and had delivered to respondents the piano in question, under a written contract in the nature of a conditional sale, which contract provided that, in case the respondents failed to make any of the payments at the time agreed upon, or should remove or attempt to remove or sell said instrument, then the appellant might retake the same wherever found; and, further, that respondents had failed to make the payments agreed upon and had, without the consent of the appellant, removed said instrument from Wallace, Idaho, where the contract was made, to Spokane, Washington; that appellant, before bringing the action, demanded possession of the respondents, which demand was refused. The respondents, after admitting the contract and removal and payments alleged, denied generally the other allegations of the complaint and alleged affirmatively that, by a contemporaneous oral contract, payments were to he made, not in money, as provided in the contract, but in commissions for the sale of other instruments, and that by the terms of this, oral contract all payments to he made upon the written contract had been made;. and also alleged, by way of counterclaim, that, subsequent to the written contract, respondents had, at the request of appellant, rendered services to the appellant, the reasonable value of which more than offset the purchase price of the piano sued for. When the action was brought, appellant took possession of said piano under the statute, and had the same at the time of the'trial. On the trial the jury found for the respondents. From the judgment rendered upon the. verdict, plaintiff appeals.

[Numerous errors are assigned in appellant’s brief, which for convenience here are grouped under three classes: (1) That the verdict is not supported by, and is contrary to, the evidence; (2) that the court erred, in permitting respondent’s counsel, upon cross-examination of witnesses, to ask certain questions; (3) that the court erred in its instructions to the jury. IJpon the first class of errors we find ample evidence in the record to support the verdict of the jury. It is a settled rule that this courl will not disturb verdicts where the question of fact is properly submitted to the jury, even although this court may believe the facts to he otherwise than as found by the jury. Swadling v. Barneson, 21 Wash. 699 (59 Pac. 506).

Second. While some of- the questions asked upon cross-examination by respondents’ counsel were undoubtedly open to criticism, we are of the opinion that the court below did not abuse its discretion in this regard, and tbat no reversible error was committed.

Third. Tbe principal contention in this case arises upon tbe instruction of tbe court to tbe jury, wherein tbe court instructed tbe jury as follows:

“The real issue is, Was there any money due on tbe piano at tbe time it was taken? You are judges of tbe credibility of tbe witnesses. If you find that any witness has wilfully testified falsely,, in regard to any material fact, you are at liberty to disregard bis testimony entirely, except when corroborated. Tbe burden of proof is on tbe plaintiff, to show at tbe time it was taken tbat anything was due on tbe piano, and should show tbat fact by a prepondérance of tbe testimony. Preponderance of tbe testimony is tbe convincing proof; if tbe evidence is clearly balanced on all tbe facts as to tbe payments claimed by defendants, you should find for the defendants.”

It is urged by appellant tbat this instruction is erron- • eous, because tbe action is founded upon a failure to pay money which tbe respondents have promised and agreed to pay, and when tbe respondents claimed to have made payment this is new matter, and must be set up as an affirmative defense; tbat is to say, tbe burden of proof is on tbe resppndents to show such payment. This rule urged by appellant for application here is .certainly correct in actions upon promissory notes, and where tbe action is founded upon a failure to pay money and tbe like, but is not applicable in an action for replevin or claim and delivery, as in tbe case at bar. In cases of this character, it devolves upon tbe plaintiff to prove ownership, which in this case depended .upon tbe fact whether tbe defendants bad failed to pay for tbe piano or not. Under a general denial, tbe defendants would have been permitted to have shown tbat they bad fully paid for tbe instrument in question, and the plea of payment here neither abridged nor enlarged their right of proof in that regard, nor placed the plaintiff in any different position from that in which a general denial would have placed him. The onus is upon the plaintiff to prove title in himself, and this was the real issue in the case. The plea of payment was, in effect, a plea of property in the defendants. Under such a plea, the burden is upon the plaintiff to show his title. Cobbey, Replevin, §§ 1003, 1005, 10.06, 1036, 1040.

It is also urged that the contemporaneous oral agreement above referred to is one upon which no evidence could have been received, because it contradicted the terms of the written contract. This oral agreement was not a contradiction of the terms of the written contract, and did not vary that contract except in the manner of payment, and this can be shown. It is also competent to show that the parties, either at the same time or subsequently, upon a new consideration, agreed how the payments provided for in the original contract might be made, either in money or money’s worth, and this is not such a variance as is contemplated by the general rule here announced. 1 Gfreenleaf, Evidence (15th ed.), 303; Weeks v. Medler, 20 Kan. 57.

The other instructions complained of substantially state the law as applied to this case.

We find no reversible error, and the judgment will therefore be affirmed.

Reavis, O. J., and Dunbar, Eullerton and Anders, JJ., concur.  