Rock Springs, Wyoming, and that defendant agreed to pay therefor the sum of $262,25. The defendant answered denying each and every allegation of the complaint, and pleaded as an affirmative defense a breach of the contract under which plaintiff claims to have shipped the goods, in that the goods were not shipped until long after the time agreed upon and thereby were not received by defendant until the season for the selling of this class of goods had almost closed, and that they came too late to be of ready sale. It is further alleged that the goods were shipped to the defendant as samples from which to select a line of goods if he so desired; that he had permission to dispose of the goods, or such portion thereof as he might be able to sell in the usual course of trade; and that it was further agreed that defendant might, at any time, if he so desired, reship to plaintiff the unsold portion of said goods. There is a sharp conflict in the evidence on the issues raised by the pleadings, but it is not necessary to review in detail the facts in the case, because the errors assigned relate only to the instructions given by the court and the refusal of the court to give certain requests asked for by the defendant. From a verdict rendered by a jury and judgment entered thereon by the court, in favor of plaintiff, for the sum of $390.62, defendant has appealed to this court.

MCCARTY, J., after making the foregoing statement, delivered the opinion of the court:

Defendant assigns as error the refusal of the court to instruct the jury that, "if the evidence is equally balanced, your verdict must be for the defendant, no cause of action." One of the defenses set up by defendant in this case was the alleged failure of plaintiff to ship the goods mentioned as agreed upon at the time they were ordered, and that they arrived too late for the fall trade, and defendant was thereby unable to dispose of them. This was new matter. The burden of proving the issue raised by it was upon the defendant. As the foregoing request is not limited or confined to the issues made in the allegations of the complaint the jury might have been misled thereby and applied it, had it been given, to

the issues raised by the affirmative matter in the answer as well as to the issues of the complaint. Therefore the court did not err in refusing to grant it. (Hickey v. Rio Grande Western Ry. Co. [Utah], 82 Pac. 29.)

Defendant also requested the court to instruct the jury as follows: "The burden is upon the plaintiff to prove all of the material allegations of its complaint by a preponderance of the evidence, and if plaintiff fails to prove all of those material allegations by such preponderance, or if the evidence is equally balanced, then your verdict must be for the defendant, no cause of action." This request correctly states the law. The defendant having denied the material allegations of the complaint, the burden of proving such allegations by a preponderance of the evidence was on the plaintiff, and if it failed to do so, or if the evidence on those issues were equally balanced, the plaintiff could not recover, and the defendant was entitled to have the jury so instructed. It is urged, however, that the request was fully covered by the following instructions which were given in the case: "(6) I further charge that the burden of proof of the sale of said goods to the defendant, as set out in his complaint, is upon the plaintiff." The court in the same paragraph, after inviting attention to some of the affirmative matters set up as a defense in the answer, proceeded to further charge the jury as follows: "And he (defendant) having alleged such fact affirmatively, the burden is upon him to establish such an agreement between him and the plaintiff for the return of said goods by a preponderance of the evidence." The court in its next succeeding instruction defines what is meant by a "preponderance of the evidence," as follows: "By a preponderance of the evidence is meant the greater weight of the evidence; that which is more convincing of its truth." These instructions when read together do not correctly state the rule respecting the degree of proof necessary for a plaintiff to produce in support of the allegations of his complaint to entitle him to recover, when, as here, the defendant introduces evidence tending to rebut and overcome the evidence produced by the plaintiff. The jury was instructed that the burden was upon the

plaintiff to prove the allegations of his complaint, and that the burden was upon the defendant to prove by a preponderance of the evidence the affirmative matter in his answer. The jury might well have understood from these instructions as given that, while the burden was upon the plaintiff to prove the allegations of his complaint and to make out a prima facie case in chief, yet it was not indispensable to entitle him to recover that the evidence on these issues, when the case was finally submitted, should preponderate in his favor. Plaintiff cites and relies upon the case of Hickey v. Railway Co., supra, in support of his contention that the request was properly refused. In that case the defendant requested the court to instruct the jury as follows: "You are further charged that the mere fact that the accident happened is not sufficient proof to charge the defendant with negligence. The burden of proving negligence rests on the party alleging it, and, when a person charges negligence on the part of another as a cause of action, he must prove the negligence by a preponderance of the evidence. And in this case, if the jury finds that the weight of the evidence is in favor of the defendant, or that it is equally balanced, then the plaintiff cannot recover, and you should find the issues for the defendant." It will be observed, as was pointed out in the opinion written by Mr. Justice Straup in that case, that the request in terms applied to the issues of the entire case, those raised by the allegations of contributory negligence in the answer as well as the issues upon the complaint; whereas in the case under consideration the request was limited to the allegations of the complaint. Moreover, in that case the court fully instructed the jury on all the issues raised by the pleadings in the case, and among other things charged the jury that: "The burden of proof is upon the plaintiff in this case, and it is necessary, before he is entitled to a verdict at your hands, that he should establish by a preponderance of the evidence the allegations of his complaint." It thus appears that the jury was instructed in clear and unequivocal terms that the burden was upon the plaintiff to prove the allegations of his complaint by a preponderance of the evidence, which was

not done in this case. We are of the opinion that the defendant was entitled to have the request or an instruction embodying the same principles, given to the jury, and that it was error for the court to refuse.

The judgment is reversed, and a new trial ordered, costs of this appeal to be taxed against respondent.

STRAUP, J., concurs.

result.

BARTCH, C. J., concurs in the

STONE v. OGDEN PACKING CO.

No. 1704. Decided July 12, 1906 (85 Pac. 1004).

1. APPEAL AND ERROR

RECORD

BILL OF EXCEPTIONS -CERTIFICATE AS TO EVIDENCE.-A judge's certificate to a bill of exceptions, reciting: "Inasmuch as the foregoing matters do not otherwise appear of record, I hereby certify that this bill of exceptions has been by me settled and allowed"- does not show that the bill contains all the evidence, so as to justify a consideration on appeal of the sufficiency of the evidence.

2. SAME INCORPORATION OF EVIDENCE

NECESSITY. Where it is

not made to appear that the bill of exceptions contains all the evidence as to certain points, objections to its insufficiency on such points cannot be considered on appeal.1

APPEAL from District Court, Weber County; J. A. Howell, Judge.

Action by Edward S. Stone against the Ogden Packing Company. From a judgment in favor of the plaintiff, defendant appeals.

AFFIRMED.

James N. Kimball for appellant.

J. D. Skeen for respondent.

1 Crooks v. Harmon, 29 Utah 304, 81 Pac. 95; Mitchell v. Jensen, 29 Utah 346, 81 Pac. 165; Hannan Bros. v. Waltenspiel, 29 Utah 466, 82 Pac. 859.

MCCARTY, J.

The pleadings in this case presented issues which involved both legal and equitable questions. It is unnecessary, viewing the case as we do, to reproduce here the issues and facts in the case. The questions of facts were tried by a jury who returned a general verdict in favor of plaintiff. Special interrogatories, embodying the equitable issues in the case, were also submitted to the jury, upon which the jury returned a special verdict in favor of plaintiff. From the judg ment entered upon the general and special findings of the jury, defendant has appealed.

The errors assigned and relied on by appellant for a reversal of the judgment relate to the alleged insufficiency of the evidence to justify the verdict. Respondent objects to a consideration of the errors assigned, on the ground that there is nothing in the bill of exceptions showing that it contains all the evidence introduced and submitted at the trial. The order of the Judge before whom the case was tried, settling and allowing the bill of exceptions, is as follows: "Inasmuch as the foregoing matters do not otherwise appear of record, I hereby certify that this bill of exceptions has been by me settled and allowed." There is nothing in this certificate or order of the judge showing, nor is it otherwise made to appear, that the bill of exceptions contains all the evidence, or even the substance thereof, introduced at the trial. This court has repeatedly held that for it to consider an error based upon the insufficiency of the evidence the record must affirmatively show that the bill of exceptions contains all the evidence bearing on the points wherein it is claimed the evidence is insufficient. (Crooks v. Harmon, 29 Utah 304, 81 Pac. 95; Mitchell v. Jensen, 29 Utah 346, 81 Pac. 165; Hannan Bros. v. Waltenspiel, 29 Utah 466, 82 Pac. 859.)

We are of the opinion, and so hold, that respondent's objection is well founded, and that we are precluded from considering the alleged errors complained of.

The judgment is affirmed with costs.

BARTCH, C. J. and STRAUP, J., concur.