
    George H. Hunter, and others, vs. John E. Pherson.
    Somerset.
    Opinion March 26, 1896.
    
      Practice. Admission. Burden of Proof.
    
    An admission made by a party, to facilitate the trial of an action, must be taken and construed as a whole. It must not be divided, and, by accepting a part, and rejecting a part, give to the admission an effect not intended by the party making it. The whole of the admission must be taken together, as well what is favorable to the party making it as what is unfavorable to him, and be construed according to the true intent and meaning of the party making the admission.
    When the'defendant admitted that the goods sued for were delivered to him, that he took them and carried them away and used them, and claimed that they were delivered to him upon the order of a third party, to whom they should have been charged, Seld; that this admission, if taken as a whole, and construed according to the intentions of the party making it, did not confess that the plaintiffs had a cause of action against the defendant. It confessed a cause of action against a third party, hut it did not confess one against the defendant.
    
      Also, that the burden of proof, by such admission, had not shifted from the plaintiffs to the defendant.
    On Exceptions by Dependant.
    This was an action of assumpsit for goods sold and delivered. Plea, the general issue. The verdict was for the plaintiffs.
    The defendant admitted that the goods sued for and delivered to him by the plaintiffs, were taken away and used by him; but he claimed that they were delivered to him on the verbal order of a third party, Parks and Connor, and should have been charged to Parks and Connor and not to him.
    The plaintiffs denied that the goods were delivered on the verbal order, and contended that the goods were sold and delivered directly to the defendant alone and there was evidence tending to support their contention.
    Upon this evidence the court instructed the jury as follows:
    “But the defendant says, true, I had the goods and consumed them, but I got them from you on the credit of Parks and Connor. Upon that issue the burden of proof is upon the defendant. The plaintiffs havmg made out their case, either by proof of the delivery of the items to the defendant or by the admission that you have here, if the defendant says he is not liable to pay, where the law implies a promise to pay, he takes the affirmative there, and it then becomes his duty to satisfy you upon a preponderance of all the evidence that his claim is the right one.”
    The defendant took exceptions to these instructions.
    
      J. W Manson, for plaintiffs.
    The burden does not shift as long as evidence is offered on one side, or the other, as to the same fact alleged by the plaintiff. But if the defendant, for instance, sets up another and distinct fact in avoidance, he takes the burden of proving it. Stephen’s Digest of Evidence, Art. 65. (note).
    The instruction was proper because the defendant did not make an issue with plaintiff upon the plaintiff’s proposition, did not dispute the facts, or the inference drawn from the facts, which made rip the plaintiffs’ prima facie case, but set up a distinct and independent proposition of his own. Here was a new and distinct question raised by the defendant. Shaw v. Waterhouse, 7 9 Maine, 180; Windle v. Jordan, 75 Maine, 149, 154; Bumrill y. Adams, 57 Maine, 565 ; Bennett v. Mmer. Express Co., 83 Maine, 236 ; Wilder v. Cowles, 100 Mass. 487.
    
      S. S. Saelcett, for defendant.
    Counsel cited: Tarbox v. Steamboat Co., 50 Maine, 345 ; Powers v. Bussell, 13 Pick. 76; Small v. Clewly, 62 Maine, 159; Wright y. Eairbrother, 81 Maine, 38; Grilmore v. Wilbur, 18 Pick. 517 ; Burnham v. Allen, 1 Gray, 496; Boss y. Grerrish, 8 Allen, 147.
    Sitting : Peters, C. J., Walton, Foster, Haskell, White-house, Wiswell, JJ.
   Walton, J.

An admission made by a party, to facilitate the trial of an action, must be taken and construed as a whole. It must not be divided, and, by accepting a part, and rejecting a part, give to the admission an effect not intended by the party making it. The whole of the admission must be taken together, as well what is favorable to the party making it as what is unfavorable to him, and be construed according to the true intent and meaning of the party making the admission. Storer v. Gowen, 18 Maine, 174; 1 Gr. Ev. § 201.

In the present case, the defendant admitted that the goods sued for were delivered to him, and that he took them and carried them away and used them. But he did not admit that they were sold to him, or that he was ever liable to pay for them. He claimed that they were delivered to him upon the order of a third party, to whom they should have been charged. Clearly, this admission, if taken as a whole, and construed according to the intentions of the party making it, did not confess that the plaintiffs had a cause of action against the defendant. It confessed a cause of action against a third party, but it did not confess one against the defendant. The admission could not be treated as a plea of confession and avoidance; for the cause of action declared on was not confessed. It was traversed. It had been traversed by the plea of the general issue, and again by protestation at the time of making the admission, and as a part of it. This left the plaintiffs in a position requiring them to prove the alleged sale to the defendant, — such a sale as made him their debtor,— or fail in their action. The burden of proof still rested upon tbem. True, tbe defendant alleged in effect tbat tbe goods sued for bad been sold to a third party, to whom tbey should have been charged. And tbis was an affirmative proposition; and if issue bad been joined on tbis proposition, tbe burden of proof would have rested upon tbe defendant. But issue was not joined on tbis proposition. Tbe issue was upon tbe alleged sale to tbe defendant; and tbis was a proposition which tbe plaintiffs must sustain, or fail in tbeir action. Tbe burden of proof bad not shifted from tbe plaintiffs to tbe defendant.

But tbe presiding justice instructed tbe jury otherwise. He instructed tbem tbat upon tbis issue tbe burden of proof was upon tbe defendant. Tbat the plaintiffs having made out tbeir case by proof of tbe delivery of tbeir goods to tbe defendant, or by tbe defendant’s admission, tbe law implied a promise to pay for tbem, and tbe defendant took tbe affirmative, and must satisfy tbem, upon a preponderance of all tbe evidence, tbat bis claim was tbe right one.

It is tbe opinion of tbe court tbat these instructions were erroneous ; tbat tbey gave too great an effect to tbe defendant’s admission, and placed upon bim a burden which be was under no obligation-to sustain.

.Exceptions sustained.  