
    JOHN AINSFIELD CO. v. RASMUSSEN.
    No. 1688.
    Decided July 14, 1906
    (85 Pac. 1002).
    1. Sales — Action for Price — Pleadings — Burden of Proof.— In an action for the price of goods, the defense that the seller failed to ship the same in time, and that the goods came too late to be of ready sale, is new matter, and the burden of proving it is on the buyer.
    2. Tblal — Instructions — Preponderance oe Evidence — Misleading Instructions. — Where, hi an action for the price of goods, the buyer denied the allegation of the complaint and pleaded as an affirmative defense the failure of the seller to ship the goods in time, an instruction that, if the evidence was equally balanced, the verdict should be for defendant, was misleading because calculated to lead the jury to apply the instruction to the affirmative defense.
    
    3. Evidence — Burden of Proof — Failure to Sustain. — Where defendant denied the material allegations of the complaint, the burden of proving the allegations by a preponderance of the evidence was on plaintiff, and if he failed to do so, or if the evidence was equally balanced, he could not recover.
    4. Trial — Instructions — Preponderance of Evidence. — Where, in an action for the price or goods, the buyer denied the allegations of the complaint, and pleaded an affirmative defense, and gave evidence rebutting the evidence of the seller, and the court charged that the burden of proving the sale was on the seller, and that the burden was on defendant to establish the affirmative defense by a preponderance of the evidence, and defined “preponderance of the evidence” as the greater weight of the evidence, the refusal to charge that the burden was on the seller to prove the material allegations of the complaint by a preponderance of the evidence, and that, if he failed to so prove the same, or if the evidence was equally balanced, the verdict should be for defendant’s was erroneous.
    ' Appeal from District Court, Weber county; J. A. Hoivell, J udge.
    Action by Tbe John Ainsfield Company against O. D. Rasmussen. From a judgment for plaintiff, defendant appeals.
    Reversed AND New trial ordered.
    
      Henderson & MacMillan for appellant.
    
      N. J. Harris for respondent.
    APPELLANT'S POINTS.
    These bills of lading represented the goods. The defendant could not secure the goods from the railroad company without the presentation of the receipt (the bill of lading) for the goods and when'plaintiff accepted the bills of lading without returning them to defendant it thereby constituted an acceptance of the goods from defendant, and the instruction requested by defendant should have been given to the jury. (Pollard v. Vinton, 105 U. S. 8.)
    So the Supreme Court of Montana, in speaking upon this subject, says:
    “We will have to consider what effect the absence of a bill of lading and of notice of the shipment to the bank had upon the rights of these parties. A bill of lading is a commercial instrument, and is a written acknowledgment signed by the master of a vessel, or by a common carrier, that he has received the goods therein, described from, the shipper to the transported on the terms therein expressed to the described place of destination, and there to be delivered to the consignee or parties therein designated. (Abb., Shipp. [7 Am. Ed.] 323; O’Brien v. Gilchrist, 34 Me. 558; 1 Pars., Shipp., 186; Macl., Shipp., 338; Emirig. Ins. 521.) A bill of lading is the symbol of the ownership of the goods covered by it — a representative of the goods. It is regarded as so much cotton, grain, iron or other articles of merchandise. The merchandise is very often sold or pledged by the transfer of the bill of lading which covers it. (Shaw v. Railroad Company, 101 IJ. S. 564, 565.) Hence it is held by the authorities that the transmission of a bill of lading by the consignor to the consignee is a delivery of the possession of the goods covered by it, and that thereby the title to the property passes from the consignor to the consignee. (Hallie v. Smith, 1 Bos. & P. 463; Desha v. Pope, 6 Ala. 690; Gibson v. Stevens, 8 How. 384; Grove v. Brien, Id. 429; Bryans v. Wight, 24 Wend. 169; Grosvenor v. Phillips, 2 Hill, 147; Sumner v. Hamlett, 12 Pick. 76; Nesmith v. Dyeing Go., 1 Curt. 130; Valle v. Oerre’s Adm’r, 36 Mo. 575.)” (Bank v. McAndrews, 5 Pac. 880-881; McKelvey v. Perham, 79' Pac. 254; Walsh v. Blakely, 9 Pac. 809; Mercantile Go. v. Pussy, 39 Pac. 738, 48 Am. St. Eep. 698; Herbert v. Winters, 39 Pac. 906; Salmon v. Branclmeirer, 93 N. Y. Sup. 271.)
    Should the carrier deliver these goods to any other person than the one named in the bill of lading, it would be liable to the party named in the bill. (Weyard v. Railroad [Iowa], 39 N. W.' 902.)
    A jury should not be permitted to determine a case upon its own opinion as to the justice between the parties, without even attempting to follow the evidence or the instructions of the court. (2 Thompson on Trials, section 2605, p. 1970, and cases cited; Brewery Go. v. Bodeman, 12 Mo. App. 573; Bllsworth v. Railroad Company, 34 N. J. E. 93; Biggs v. Barry, 2 Curt. C. C. [H. S.] 259.)
    
      RESPONDENT'S POINTS.
    Appellant’s counsel contends tbat tbe court erred in refusing to give tbe following instructions:
    “If tbe evidence is equally balanced your verdict must be for tbe defendant, no cause of action.” Tbe case of Hichey v. Railroad Oo., 29 Utah 392, 82 Pac. 29, is decisive on this point.
    Tbe fact tbat tbe jury found for plaintiff without interest would not vitiate tbe verdict. If plaintiff is entitled to interest tbe court could have amended tbe verdict, even after tbe discharge of tbe jury, so as to make it include interest. (22 Enc. PI & Pr., 918, 2 Thompson on Trials, see. 2605, p. 1910.)
    A variance is not material unless defendant is actually misled thereby. (Eev. Stat. 18.98, sec. 3001.)
    And on appeal the court will regard tbe complaint as amended to conform to tbe proof. (Wyhart v. Pennington, 50 Pac. 413; Burgess v. Helm, 51 Pae. 1025.)
    Tbe jury having determined tbe issues in this case from all tbe evidence, there being a conflict of testimony, this court will not disturb their finding. (Pratt v. Olawson, I Utah 254; Slater v. Gragun, 1 Utah, 412; Wild v. Union Pacific [Utah], 63 Pac. 886.)
    STATEMENT OP PACTS.
    Plaintiff brought this action to recover from tbe defendant tbe sum of $545.25, alleged to be due on an express contract for - goods sold and delivered. Tbe complaint contains two-causes of action. In tbe first cause of action it is alleged tbat between June 1, 1903, and November 1, 1903, at Ogden, Utah, plaintiff sold and delivered to the defendant, at bis request, a certain stock of books consisting of ladies’ cloaks, skirts, and suits, and tbat tbe agreed price to be paid therefor was $283. Tbe allegations in tbe second cause of action are tbe same as those in tbe first, except tbat tbe goods, at tbe request of defendant, were shipped and delivered to- him at Rock Springs, Wyoming, and that defendant agreed to pay therefor the sum of $262,25. The defendant answered denying each and every allegation of the complaint, and pleaded as an affirmative defense a breach of the contract under which plaintiff claims to have shipped the goods, in that the goods were not shipped until long after the time agreed upon and thereby were not received' by defendant until the season for the selling of this class of goods had almost closed, and that they came too late to be of ready sale. It is further alleged that the goods were shipped to the defendant as samples from which to select a line of goods if he so desired; that he had permission to dispose of the goods, or such portion thereof as he might be able to sell in the usual course of trade; and that it was further agreed that defendant might, at any time, if he so desired, reship to plaintiff the unsold portion of said goods. There is a sharp conflict in the evidence on the issues raised by the pleadings, but it is not necessary to review in detail the facts in the case, because the errors assigned relate only to the instructions given by the court and the refusal of the court to give certain requests asked for by the defendant. From a verdict rendered by a jury and judgment entered thereon by the court, in favor of plaintiff, for the sum of $390.62, defendant has appealed bo this court.
    
      
       Hickey v. Rio Grande Western Ry. Co., 29 Utah 392, 82 Pac. 29.
    
   McCARTY, J.,

after making the foregoing statement, delivered the opinion of the court:

Defendant assigns as error the refusal of the court to instruct the jury that, “if the evidence is equally balanced, your verdict must be for the defendant, no cause of action.” One of the defenses set up by defendant in this case was the alleged failure of plaintiff to ship the goods mentioned as agreed upon at the time they were ordered, and that they arrived too late for the fall trade, and defendant was thereby unable to dispose of them. This was new matter. The burden of proving the issue raised by it was upon the defendant. As the foregoing request is not limited or confined to the issues made in the allegations of the complaint the jury might have been misled thereby and applied it, had it been given, to tbe issues raised by tbe affirmative matter in tbe answer as well as to tbe issues of tbe complaint. Therefore tbe court did not err in refusing to grant it. (Hickey v. Rio Grande Western Ry. Co. [Utah], 82 Pac. 29.)

Defendant also requested tbe court to instruct tbe jury as follows: “Tbe burden is upon tbe plaintiff to prove all of tbe material allegations of its complaint by a preponderance of tbe evidence, and if plaintiff fails to prove all of those material allegations by such preponderance, or if tbe evidence is equally balanced, then your verdict must be for tbe defendant, no cause of action.” This request correctly states tbe law„ Tbe defendant having denied tbe material allegations of tbe complaint, tbe burden of proving such allegations by a preponderance of tbe evidence was on tbe plaintiff, and if it failed to do so', or if tbe evidence on those issues were equally balanced, tbe plaintiff could not recover, and the defendant was entitled to have tbe jury so instructed. It is urged, however, that tbe request was fully covered by the following instructions which were given in tbe case: “(6) I further charge that tbe burden of proof of tbe sale of said goods to tbe defendant, as set out in bis complaint, is upon tbe plaintiff.” Tbe court in tbe same paragraph, after inviting attention to some of tbe affirmative matters set up' as a defense in tbe answer, proceeded to further charge the jury as follows : “And be (defendant) having alleged such fact affirmatively, tbe burden is upon him, to establish such an agreement between him and tbe plaintiff for tbe return of said goods by a preponderance of tbe evidence.” Tbe court in its next succeeding instruction defines what is meant by a “preponderance of tbe evidence,” as follows: “By a preponderance of the evidence is meant the greater weight of the evidence; that which is more convincing of its truth.” These instructions when read together do not correctly state tbe rule respecting the degree of proof necessary for a plaintiff to produce in support of tbe allegations of bis complaint to entitle him to recover, when, as here, tbe defendant introduces evidence tending to rebut and overcome tbe evidence produced by tbe plaintiff. Tbe jury was instructed that tbe burden was upon tbe plaintiff to prove the allegations of bis complaint, and that tbe burden was upon tbe defendant to prove by a preponderance of tbe evidence tbe affirmative matter in bis answer. Tbe jury might well have understood from these instructions as given that, while tbe burden was upon the plaintiff to prove tbe allegations of his complaint and to malm out a prima facie case in chief, yet it was not indispensable to entitle him to recover that the evidence on these issues, when the case was finally submitted, should preponderate in his favor. Plaintiff cites and relies upon the case of Hickey v. Railway Co., supra, in support of his contention that the request was properly refused. In that case the defendant requested the court to instruct the jury as follows: “You are further charged that the mere fact that the accident happened is not sufficient proof to charge the defendant with negligence. The burden of proving negligence rests on the party alleging it, and, when a person charges negligence on the part of another as a causé of action, he must prove the negligence by a preponderance of the evidence. And in this ease, if the jury finds that the weight of the evidence is in favor of the defendant, or that it is equally balanced, then the plaintiff cannot recover, and you should find the issues for the defendant.” It will be observed, as was pointed out in the opinion written by Mr. Justice Straup in that case, that the request in terms applied to the issues of the entire case, those raised by the allegations of contributory negligence in the answer as well as the issues upon the complaint; whereas in the case under consideration the request was limited to the allegations of the complaint. Moreover, in that case the court fully in- ' strueted the jury on all the issues raised by the pleadings in the case, and among other things charged the jury that: “The burden of proof is upon the plaintiff in this case, and it is necessary, before he is entitled to a verdict at your hands, that he should establish by a preponderance of the evidence the allegations of his complaint” It thus appears that the jury was instructed in clear and unequivocal terms that the burden was upon the plaintiff to prove the allegations of his complaint by a preponderance of the evidence, which was not done in this case. We are of the opinion that the defendant was entitled to have the request or an instruction embodying the same principles, given to the jury, and that it was error for the court to refuse.

The judgment is reversed, and a new trial ordered, costs of this appeal to be taxed against respondent.

STRAUP, J., concurs. BAPTCH, 0. J., concurs in the result.  