
    W. T. Roche v. William Leach.
    No. 15,434.
    (94 Pac. 1135.)
    Error from Clay district court; Sam Kimble, judge.
    Opinion filed March 7, 1908.
    Affirmed.
    
      W. T. Roche, C. C. Coleman, and F. L. Williams, for plaintiff in error.
    
      F. P. Harkness, F. B. Dawes, and C. P. Rutherford, for defendant in error.
   Per Curiam:

The refusal of the court to give an instruction that the burden of proof shifted from the plaintiff to the defendant could not have prejudiced the defendant, and was not, therefore, under any view of the case, reversible error. Besides, the burden was on.the plaintiff all the time. This is not a case where the material facts asserted by the plaintiff were admitted and an affirmative defense set up by a plea in confession and avoidance. On the contrary, the defendant denied the facts asserted by the plaintiff. The bill of particulars set up a contract made April 8, but in his proof plaintiff relied upon a different contract, which he claimed was made at defendant’s house on the evening of April 10. His evidence of what occurred at the latter date was contradicted by the defendant’s witnesses.

There was abundant evidence to support the special findings and the general verdict, and, as they have been approved by the trial court, the judgment is affirmed.  