
    MARIA ALGIE, Plaintiff and Respondent, v. FERNANDO WOOD, Defendant and Appellant.
    i. trial, conduct of.
    1. BTJBBEE OF PBOOF.
    
    
      (a) Negative to be pboved, when.
    1. When the right of action or the defense is founded on a negative allegation, the party alleging the negative must establish it.
    
      E. g.: A vendor of real estate sued to recover the consideration agreed to be paid by the vendee, alleging that the vendee agreed to pay $30,000, deducting therefrom all existing mortgages, liens and incumbrances on the property at the date of the deed; and alleged that the property was subject at the date of the deed to incumbrances amounting to $34,000; and that the vendee had paid $500. The action was brought to recover the balance of $5,500.
    Held,
    1. It devolved on the plaintiff to prove toe amount of the incumbrances.
    
      
      Decided November 5, 1877.
    2. It being admitted in the contract that there were, liens, proof that there were certain liens was not sufficient to establish that there were no others.
    
      (a) Presumption of no liens.-—In such case plaintiff cannot rest on a presumption that in the absence of the existence of liens, it will be assumed that there are none.
    
      (b) Facts more in defendant's knowledge.—In such case the rule which casts on a party the burden of proving such facts as are more peculiarly in his knowledge than in that of the other, does not apply.
    H. EVIDENCE.
    1. BF8 GESTA
    
    
      (a) When decíabations do not fall within the bule.
    1. Declarations made by a party to an action at the time of doing an act between him and a third person, in the absence of the other party to the action, are not admissible in favor of the party doing the act, when the doing of the act was proved in his behalf.
    
      (a) B is otherwise if the other party to the action proves the doing of the act.
    Before Sedgwick, Speie, and Freedman, JJ.
    Appeal from judgment entered on verdict for plaintiff.
    The complaint averred that plaintiff by deed, conveyed certain real estate to defendant for the price or sum of $30,000, which said sum the defendant agreed to pay to the plaintiff, deducting therefrom all existing mortgages, liens and incumbrances to the date of said deed, and to which mortgages, liens and incumbrances, said lots were sold subject. That the plaintiff duly delivered said deed to the defendant, on or about said ¡November 27, 1872. That said lots of land and premises were subject at the date of said deed to incumbraces, amounting to the sum of $24,000. That the said defendant paid to the plaintiff on account of said price or consideration, the sum of $500, but has failed and neglected to pay the balance thereof, amounting to the sum of $5,500, in which said last mentioned sum the said defendant is justly indebted to the plaintiff, the same being due, owing, and payable.
    The answer averred that the conveyance was made to the defendant at the request of plaintiff, for her own benefit and convenience, upon the express agreement that the defendant was to pay no consideration.
    In the course of the trial defendant’s counsel called a witness and proved by him that defendant had paid to him a $500 mortgage on the premises; he then asked the witness, “ What did Mr. Wood say at the time he paid it.” Which was objected to, the objection was sustained, and defendant’s counsel excepted.
    
      Moses B. Maclay, attorney, and Ira Shafer and James M. Smith, o.f counsel, for appellant, among other things urged :
    —I. The judge erred in refusing to charge the defendant’s first request to charge, to wit: to direct a verdict for the defendant on the ground that there was no proof that, after taking out all incumbrances to the date of the deed, there would be any sum due the plaintiff.
    II. We submit that the judge erred in excluding our offer to show that when Mr. Wood paid Mr. Martin, he, at the time of the payment, said he had no interest in the property, that he held the property for Mrs. Algie, and that he bought it for her benefit, expecting to be repaid out of the property. We submit that when they proved the fact that he made payment, that we have the right to show all that was said and done at that time, as a part of the transaction itself; and the authorities upon that point are so entirely familiar that it is unnecessary to cite them.
    
      W. McDermott, attorney, and of counsel for respondent, among other things, urged :
    —I. The defendant’s counsel moved to dismiss the complaint on the ground that the plaintiff had not proved that there were no other incumbrances on the lots than those proved. 1. The allegation in the complaint is not “that all the incumbrances on the lots were $24,000,” but that “said premises were subject at the date of said deed to incumbrances amounting to the sum of $24,000.” The answer denied this allegation; that is, it denied that the premises were subject to incumbrances amounting to $24,000, but did not allege or claim that they were subject to incumbrances to any larger amount. If the plaintiff had failed to prove that there were any incumbrances on the lots, the defendant having denied that there were any, and not having alleged that there were any, plaintiff would have been entitled to recover the entire sum of $30,000 unless limited by the demand in her complaint. 2. The burden of proof to show what incumbrances (if any), according to well settled rules, was on the defendant. All matters in reduction of the plaintiff’s claim must be proved by the defendant; it is never the duty of the plaintiff to prove matters in reduction of his claim (Hollister y. Bender, 1 Hill, 150). 3. Plaintiff did prove the incumbrances. She told defendant their amount, including mortgages, taxes, interest and assessments. If they were more, defendant should have proved them to have been more. She also produced the mortgages. 4. The defendant, by not alleging that the incumbrances were more than $24,000, admitted that they were no more than that sum.
    II. The defendant offered to prove what he said to Mr. Martin when he paid off a mortgage. It was properly excluded. Mrs. Algie was not present, and the defendant’s statement, not under oath, as to the terms upon which he took the property, was certainly not admissible.
   By the Court.—Sedgwick, J.

—The plaintiff did not attempt to prove, that the defendant expressly promised to pay the consideration, that the complaint stated, viz., $30,000, after deducting the incumbrances upon the property. On the contrary, she testified that the defendant agreed to pay the whole $30,000. Of course the action was not for this. The complaint did not claim it, nor did the plaintiff ask for it on the trial. The proof under the complaint would not have supported a verdict that $30,000 was due. The deed by itself could not justify the conclusion that $30,000 was due, for the complaint averred the contrary, and showed that the defendant had promised to pay only the difference. If the plaintiff may rely on the promise stated in the complaint, as one implied from all the circumstances, the result is the same, that she can only recover the difference, upon the implied promise to pay that.

In this case, the burden of proof was upon the plaintiff to show what this difference was, and as implied in that to show by some measure of proof that there were no other or greater incumbrances than her testimony admitted to exist. She could not rest upon a presumption of fact, that in the absence of proof to show the existence of a lien, it could be taken for granted there was none—because the agreement itself showed the understanding to be that there were liens.

ISTor was the burden upon the defendant to mitigate damage, by showing the existence of liens, for, as the plaintiff left the case, the amount of damages had not been, shown, and until there is prima facie proof of the sum due, the defendant is not called upon for proof to lessen it.

Nor was the amount of the incumbrances peculiarly within the defendant’s knowledge. The plaintiff had the same opportunities and the same interest to ascertain them.

As the plaintiff’s case involved affirmative and negative propositions she was bound to give evidence to sustain both. " To this general rule, that the burden of proof is on the party holding the affirmative, there are some exceptions, in which the proposition, though negative in its terms, must be proved by the party who states it. One class of these exceptions will be found to include those cases in which the plaintiff grounds his right of action upon a negative allegation, and where, of course, the establishment of this negative is an essential element in his case, &c.” (Greenleaf’s Ev. § 78). In this case part of the plaintiff’s proof «cannot be a presumption that there were no liens, for the reason that the agreement expressly admitted the contrary.

The plaintiff wholly failed to show the amount of unpaid taxes and assessments, going no further than to say they were not large—about $1,300—but in fact she did not know their amount. I think, therefore, that the case should have been taken from the jury upon the request of defendant’s counsel.

I am further of opinion that if the plaintiff had introduced testimony that the defendant had paid the $500 mortgage upon the premises to Martin, that the defendant would have had a right to show what he said at the time of the payment. The declarations of a party, at the time of delivering money, are a part of the res gestae. In fact, however, the defendant himself introduced the testimony that he had paid the mortgage to Martin, and his offer to show what he said at the time was an attempt to get into evidence his own declaration as to his relations to the property. I do not think that the judgment should be reversed for the exclusion of this evidence.

But I think there should be a new trial on the other ground—that the burden of proof was on the plaintiff to show what incumbrances there were on the property, and their amount. She failed to show these things, and the motion to dismiss the complaint should have been granted.

Judgment reversed, new trial granted, with costs to appellant to abide event.

Speir and Freedman, JJ., concurred.  