
    Hollister and another vs. Bender.
    Where the action was for the breach of a contract to furnish timber; the defence, a failure of the plaintiff to make a certain money- advance, which the contract bound him to make before the work commenced, if called for; and the case finally turned upon the sole question whether the advance had or had not been called for, as to which the evidence was quite conflicting: held, that on this point, the onus probandi was upon the defendant; and the judge having charged that the jury ought not to find against the defendant if they had reasonable doubts in respect to it, a new trial was ordered.
    Upon non-assumpsit pleaded, though the onus is on the plaintiff to show a promise ; yet, semble, in respect to matter of defence which, though proper under that issue, does not come in by way of rebutting the plaintiff’s evidence merely, (e g. payment, release, accord and satisfaction, &c.) the defendant has the onus.
    
    It can make no difference, whether the defence springs out of the contract sued on, or arises aliunde.
    
    Tire substance of the allegation to be tried, rather than the particular shape of the pleadings, must determine where the onus liesespecially, in cases where the defendant is not required to plead the matter intended to be relied on.
    The defence jn this case was, it seems, a proper subject for a special plea.
    A special plea setting up matter beyond a simple denial of what the plaintiff, under the general issue, would be bound in the first instance to prove, is not bad as amounting to the general issue, even though the matter would be evidence without being pleaded.
    Assumpsit on a - special contract, tried before Willard, 0. Judge, at the Oneida circuit, in May, 1838. The plaintiffs gave in evidence a written agreement, dated December 19,1833, by which the defendant agreed' to furnish and deliver to the plaintiffs, on the bank of the Brie canal, 3000 sticks of cedar timber of a particular description—2000 sticks to be. delivered by the first of June then next, and the residue by the first of boating in the year 1835. The plaintiffs were to pay for the timber on delivery, at fifteen cents per stick. The plaintiffs also agreed, that if the defendant should want money before the contract was fulfilled, they would advance $ 100, if called for after the middle of January then next—the defendant, giving good security ; and each party was to give security for fulfilment of the contract, if required by the other. The execution of the contract was admitted, and there was no pretence that the defendant had ever delivered any part of the lumber. His defence rested on the allegation, that in March or April, 1834, he called on the plaintiffs and required the advance of $100 provided for by the contract, and offered to give security for performance on his part, and that the plaintiff had failed to make the advance. Upon the question whether the defendant had required an advance of the $100 and offered security, which was the only question going to the foundation of the action, the evidence was strongly conflicting. The judge charged the jury, that in judging of the balance of the testimony in a doubtful case, it was the duty of the party holding the affirmative to make out his case, and that the jury should not find, a verdict against a defendant, the effect of which would be to take money from him and give it to the plaintiffs, unless the testimony preponderated against him; that if the whole testimony, in the opinion of the jury, left the case in doubt—if it was so nearly balanced that they entertained reasonable doubt—they should find for the defendant. The plaintiffs excepted, and the jury found a verdict for the defendant. The plaintiffs now move for a new trial on a bill of exceptions.
    
      T. Jenkins, for plaintiffs.
    
      J. A. Spencer, for defendant.
   By the Court, Bronson, J.

The charge of the judge was, I think, calculated to mislead the jury. They were told, in effect, that the plaintiffs held the affirmative of the question which the jury were to decide; that they should not find a verdict against the defendant unless the testimony preponderated against him; and that if the jury entertained a reasonable doubt, they should find for the defendant. The rule that there must be no reasonable doubt, belongs more appropriately to criminal, than to civil cases. But aside from that consideration, I think the burden of proof in relation to the only controverted fact going to the ground of the action, was upon the defendant. He held the affirmative, and it was for him to make out a preponderance of evidence. The execution of the contract was admitted, and when it was read in evidence, the plaintiffs had completely made out their case. There was no pretence of performance on the part of the defendant; and there was no condition precedent to be performed on the part of the plaintiffs. By the contract, they had nothing to do until the timber should be delivered—unless they were sooner put in motion by a request to advance the $100 and an offer of security. The defendant gave no evidence in answer to that on which the plaintiffs rested their case; but he set up another and a distinct matter in bar of the action. He rested his defence upon the allegation that he had required an advance of money and offered security; and it was necessary for him to establish that allegation before he could make out any duty or default on the part of the plaintiffs. Aside from the question of damages, which received a separate consideration from the judge, the only matter in controversy between the parties on the trial, was, whether the advance of money had been required and security offered by the defendant; and in relation to that matter the defendant plainly held the affirmative, and the onus probandi was upon him.

It is true, that upon non assumpsit pleaded, the plaintiff holds the affirmative of the issue, and the onus of making out a promise is upon him; but he does not hold the affirmative of every question that may be made under that issue. The defendant, without at all controverting the promise, may set up payment, release, accord and satisfaction, and other, matters of defence under the plea of non assumpsit; and when he does so, the burden of proof is upon him, and he must establish his allegation by a preponderance of evidence. And such must, I think, be the rule in relation to every matter set up as a defence to the action, which does not come in by way of answer to the evidence for the plaintiff.' It can make no difference in principle, whether the defence springs out of the contract on which the actiqn is brought, or arises aliunde.

The defence on which the defendant relied might have been pleaded specially in bar of the action. He might have alleged in pleading, what he said on the trial, to wit: true it is that I made the promise, and that I did not deliver the timber; but actio non, because I called for an advance of $100 and offered security in pursuance of the contract, and the advance was not made. Such a plea would not be objectionable, even upon special demurrer, as amounting to the general issue; for it does not deny any fact which the plaintiffs would be bound to prove in the first instance, upon the plea of non assumpsit. If this matter had been pleaded specially, the defendant would clearly have held the affirmative of the issue, and the burden of proof would have been upon him. That burden cannot be changed by the great latitude of defence which is allowed in this action Under the plea of non assumpsit. The substance of the allegation to be tried, rather than the particular form of the pleading, must determine where the onus lies; especially in those actions where the defendant is not required to plead the particular matter on which. he intends to rely. (2 Ev. Path. 125. Cowen & Hill’s Notes to Phil. Ev. 475 to 478, and cases there cited.)

It is of course unnecessary to examine the other "questions made by the bill of exceptions.

New trial granted.  