
    McNutt & Ross v. Jacob Kaufman.
    1. A misdirection of the jury, as to the burden of proof, is error for which the judgment will be reversed at the instance of the party prejudiced thereby.
    2. A reviewing court having found such error to exist, will not look into the testimony for the purpose of ascertaining whether the verdict is sustained by the weight of the evidence.
    Motion for leave to file a petition in error to the Superior Court of Cincinnati.
    . The original action was brought by defendant in error against the plaintiffs in error. The issue was tried by a jury. The pleadings in the case, omitting the formal parts, were as follows:
    FOURTH AMENDEB PETITION.
    Plaintiff says there is due to him from the defendants, for money had and received, the sum of two thousand dollars, with six per cent, interest thereon from February 11, 1869, which has never been paid, nor any part thereof, though often demanded.
    
      Wherefore, plaintiff asks judgment against said defendants for the sum of two thousand dollars, with six per cent, interest thereon from February 11, 1869, for costs, and all proper relief.
    ANSWER.
    Come now the defendants, and, for answer to the fourth amended petition, admit that on the 11th day of February, 1869, they received from the plaintiff the sum of two thousand dollars; but they say that this sum was paid to them in advance upon a contract for the sale of hogs by them to him, which contract they were ever ready and willing to perform according to its terms, but the said plaintiff broke' and violated. Wherefore, they are not indebted to the plaintiff, as averred in the petition.
    REPLY.
    And now comes the said plaintiff, and denies all and singular the statements in said answer contained, and prays-judgment, as in his petition herein.
    Testimony, more or less conflicting, was offered by each party, and the court, among other things, charged the jury as follows:
    “ The defendants having admitted in their answer that they have received the two thousand dollars, and that the plaintiff has broken the contract upon which said sum of money was received by them, the burden of proof is on the' defendants to satisfy you by a fair preponderance-of the testimony that the plaintiff committed a breach of the contract, if you find that one was made.”
    Verdict and judgment having been given for the plaintiff' below, the defendants now allege error in the above instruction.
    
      Hoadly, Johnson $ Colston, for the motion:
    The answer admits nothing but the receipt of the two thousand dollars. It expressly denies that the defendants are indebted, and its statement that the money was paid in advance upon a contract which they kept and Kaufman broke,' is an effectual denial of the averments of the petition. Corry v. Campbell, 25 Ohio St. 134.
    ' The defendants were entitled to a jury trial, and to insist that the jury should be properly instructed as to the law. The instruction of the court to the jury as to the burden of proof was error. This was, in effect, to deprive the defendants of their jury trial. Chaffee v. The United States, 18 Wall. 516, 545; Stivers v. Borden, 20 Ohio St. 232; Emery’s Sons v. Irving National Bank, 25 Ohio St. 360.
    
      James B. Challen and W. T. Forrest, contra:
    This money having been received wHh use, as our ancestors expressed it, and for the use of Kaufman, as the plea of indebtedness for money had and received avers, the defendants below by admitting that they received it, without denying either the with use or for use, confess that they had been indebted, but seek to avoid the indebtedness, and claim payment by setting up a contract which the plaintiff violated. The payment being in the nature of damages, the defendants below of course had to substantiate them. The receipt of the money implied a promise to repay.
    There is no similarity whatever between the case at bar and that of Corry v. Campbell, 25 Ohio St. 134. The reply, in effect, denying the contract, if the burden was on the plaintiff, he would have to prove a negative.
    The plaintiffs in error are not entitled to a new trial. The real merits of the controversy have twice been heard, and are manifestly reached in the verdict and judgment under review. The general principles of the law applicable to the issue, are tersely and ably embodied in the general charge. It is beyond criticism, and without exception in its general scope and comprehensiveness. The only complaint is, that the language of counsel was not preferred by the court to its own.
   By the Court.

The pleadings in this case, to say the-least, should not be adopted as precedents. Taking them as they are, however, we are of opinion, that, upon the real issue as made, the burden of proof was upon the plaintiff below. It was necessary for him to prove that the money had and received by the defendants, came to them under such circumstances as would raise a promise on their part to pay the same to him. Such state of facts is not admitted by the answer. We do not regard the statements contained in the answer as matter in confession and avoidance, but rather as a statement of facts, showing the allegations in the petition to be untrue.

If, upon the trial, the plaintiff had offered testimony tending to show that defendants had received the money for his use, they might have defended successfully, by showing that they received it, as payment in advance, upon a contract for the sale of hogs by them to the plaintiff; and that they had ever been ready and willing to perform the contract on their part, according to its terms. On such a state of the case, it would have been wholly immaterial whether the plaintiff had or had not violated the contract on his part. The court, therefore, erred in charging the jury, that “ the defendants having admitted in their answer that they have received the two thousand dollars, and that the plaintiff has broken the contract upon which said sum of money was received by them, the burden of proof is on the defendants to satisfy you by a fair preponderance of the testimony that the plaintiff committed a breach of the contract, if you find that one was made.”

The right of the plaintiff' to recover in the action would not necessarily have been defeated by a finding by the jury, that the money was paid by plaintiff to the defendants on their contract to deliver hogs at a future day. The question would have then been open to the plaintiff to show that the contract had been rescinded, or that the defendants had wholly failed to perform on their part.

It is contended, however, for the defendant here, that the judgment should not be disturbed on account of this error in the charge, because the testimony (the whole of which Is set out in the record) shows, as it is claimed, that the verdict was clearly right. In answer, it is enough to say that the plaintiffs in error are entitled to have the issues of fact in the case determined by a jury properly instructed as to the burden of proof.

Motion granted, judgment reversed, and cause remanded.  