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$953. Contracts

39

The burden of proof is on the party who seeks to avoid a contract because it is against public policy or illegal, or because it was procured by fraud.40

In an action to recover for breach of a contract, the burden is upon the plaintiff to show that a remedy in damages is not adequate.11 Where the plaintiffs who seek the aid of a court of equity to rescind a contract alleged to have been procured by fraud, have been guilty of unreasonable delay after discovery of the fraud, in instituting and prosecuting their action, they must not only allege the impediments which delayed them, but must also produce evidence explaining their delay; and if they fail to do so the court, upon its own motion, may refuse to grant relief.42

89 Horn v. Gibson, 103 P. 563, 24 Okl. 481.

40 Where, in an action for goods bought, the answer admits the contract and the receipt of the goods, and the only defense is that the contract is illegal and procured by fraud, the burden of proof is on defendant. J. W. Ripy & Son v. Art Wall Paper Mills, 136 P. 1080, 41 Okl. 20, 51 L. R. A. (N. S.) 33.

Where written contract is attacked for fraud, it will be upheld unless fraud is established by clear and convincing evidence, and it cannot be predicated on mere future promises. Lusk v. White, 58 Okl. 773, 161 P. 541.

Where a seller seeks to rescind a sale for the reason that the buyer fraudulently represented himself solvent, the burden of proof is upon the seller, and a demurrer to the evidence is properly sustained if he fails to prove the insolvency of the buyer. Flohr v. Schwartzberg, 59 P. 666, 9 Kån. App. 215.

In an action to rescind a contract of exchange on the ground that defendant fraudulently represented that the property conveyed by him was unincumbered, while in fact it was mortgaged, plaintiff has the burden of showing his ignorance of the mortgage, where it was recorded, and its existence was also shown by an abstract of title furnished plaintiff. Ferguson v. Willig, 46 P. 936, 57 Kan. 453.

A party seeking to set aside a written instrument on the ground of fraud assumed the burden of proving the same by clear, positive, and convincing evidence. Herron v. M. Rumley Co., 116 P. 952, 29 Okl. 317.

41 Howerton v. Kansas Natural Gas Co., 108 P. 813, 82 Kan. 367, 34 L. R. A. (N. S.) 46, reversing judgment 106 P. 47, 81 Kan. 553, 34 L. R. A. (N. S.) 34, on rehearing; Day v. Kansas City Pipe Line Co., 109 P. 186, 82 Kan. S61; Wheeland v. Fredonia Gas Co., 109 P. 187, 82 Kan. 862.

42 Skinner v. Scott, 118 P. 394, 29 Okl. 364.

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That proof of bailment and loss or injury makes out a prima facie case does not shift the burden of proof but merely shifts the burden of evidence.13

In an action against a bailee for loss of property by a fire, it is error to instruct that the burden is on the defendant to prove that he was not negligent; the burden being on plaintiff to make a prima facie case outweighing an affirmative defense.**

Where the plaintiff showed that the defendant failed to deliver a shipment in a safe condition within a reasonable time, the burden was then on the defendant to excuse itself from negligence,15 or to prove that the shipment was made under a special contract which released it from liability.*

46

In an action for injuries to an intrastate shipment, the burden is on defendant to establish its contention that the shipment is an interstate one, which is not subject to the constitutional article as to a notice or demand.47

Under a bill of lading reciting that goods were received in apparent good order, issued by the initial carrier as agent for the delivering carrier, the burden is on the delivering carrier to show that the goods were not in the condition recited.48

43 Standard Marine Ins. Co., Limited, of Liverpool v. Traders' Compress Co., 46 Okl. 356, 148 P. 1019.

44 Stone v. Case, 124 P. 960, 34 Okl. 5, 43 L. R. A. (N. S.) 1168.

45 St. Louis & S. F. R. Co. v. Peery, 138 P. 1027, 40 Okl. 432.

Where, in a common-law action for breach of a contract to safely transport cattle within a reasonable time, defendant's noncompliance is shown, the burden is on it to excuse itself therefrom. St. Louis & S. F. R. Co. v. Shepard, 139 P. 833, 40 Okl. 589.

Burden rests on delivering carrier to show that injury to goods shipped occurred without its fault or negligence. St. Louis, & S. F. R. Co. v. Akard, 60 Okl. 4, 159 P. 344.

46 St. Louis & S. F. R. Co. v. Cox, Peery & Murray, 138 P. 144, 40 Okl. 258. 47 Chicago, R. I. & P. Ry. Co. v. Harrington, 44 Okl. 41, 143 P. 325; Const. Okl. art. 23, § 9.

48 St. Louis & S. F. R. Co. v. Jamieson, 95 P. 417, 20 Okl. 654. In an action against the delivering carrier for injury to and loss of a portion of goods delivered to the initial carrier as one shipment and under a single contract of carriage, not only over its line but the connecting line, the bill of lading issued by the initial carrier, reciting that the goods were received in apparent good order, casts the burden on the delivering carrier to rebut such prima facie presumption of delivery and apparent good order, or to show that the alleged injury or loss occurred before the goods reached it. Id.

Where a live stock bill of lading required notice of damage before stock was removed or mingled with other stock, the burden was on plaintiff, in an action thereunder, to show that the notice was given within the time provided.49

§ 955. Bills and notes-Execution

Where the execution of the note sued on is denied under oath by the defendants, who are the alleged makers, the burden is on the plaintiff to prove the execution of the note by at least a prima facie showing, before the note is entitled to be introduced in evidence, and the burden of proof is on the holder to prove the genuineness of the signature of the makers.50

In an action by one other than the payee, where the assignment to plaintiff and his ownership are in issue, the burden is on plaintiff to prove them."

51

Where the execution of a note is denied under oath, and on the trial the genuineness of the signatures to the note are admitted, but it is claimed that a material alteration has been made in the note subsequent to its execution, the presumption will be entertained that all alterations or interlineations were made prior to and with the consent of the makers, and the burden will be on the one alleging such alterations to show that they were made subsequent to

49 Chicago, R. I. & P. Ry. Co. v. Conway, 125 P. 1110, 34 Okl. 356. In an action against a carrier for injuries to live stock, plaintiff's evidence that he prepared a written notice of such injury, as required by the bill of lading, and left it with his commission firm at destination of the stock, and that they afterwards wrote him that they had filed with defendant, was incompetent. Chicago, R. I. & P. Ry. Co. v. Conway, 125 P. 1110, 34

Okl. 356.

50 Richardson v. Fellner, 60 P. 270, 9 Ókl. 513,

In an action by the indorsee of a note, wherein a properly verified answer contains a general denial, the burden is on the indorsee to prove by a preponderance of the evidence the execution of the indorsement, and when he offers no evidence thereof, evidence is insufficient to sustain judgment for him. Lambert v. Harrison (Okl.) 171 P. 45.

51 Jones v. Wheeler, 101 P. 1112, 23 Okl. 771.

In a transferee's action on a note to which the maker set up defenses, held, that under Comp. Laws, 1909, §§ 4641, 4657. the burden was on plaintiff to prove that the note was indorsed by the payee. Gault v. Kane, 44 Okl. 763, 145 P. 1128.

Where, in a mortgage foreclosure suit, the execution and genuineness of the note and mortgage are conceded and the answer sets up only defensive matter, the burden is on defendants. Johnson v. Young, 47 Okl. 741, 150 P. 664.

the execution of the instrument, and without the consent of the makers.52

In an action on a note, setting forth as consideration the construction of a railroad by a given time, where an answer is filed setting up a distinct contract for the conveyance of certain land as a consideration for the note, and where the reply denies under oath any such contract, the burden of proving the execution and delivery thereof is on defendant, and a failure to prove the execution and delivery precludes the admission of such contract in evidence.53 $956.

Holder

Where the title of any person who has negotiated a negotiable instrument is shown to be defective, the burden is on the holder to show that he is a holder in due course." 54

52 Richardson v. Fellner, 60 P. 270, 9 Okl. 513; Kapp v. Levyson, 58 Okl. 651, 160 P. 457; Cavitt v. Robertson, 142 P. 299, 42 Okl. 619; West v. Naten, 49 Okl. 249, 152 P. 342.

53 Sparks v. Oklahoma Const. Co., 91 P. S39, 19 Okl. 55.

54 State v. Emery (Okl.) 174 P. 770, 6 A. L. R. 234; Brinton v. Maxey, 59 Okl. 33, 157 P. 1048; Critser v. Steeley, 62 Okl. 203, 162 P. 795; Price v. Winnebago Nat. Bank, 79 P. 105, 14 Okl. 268.

Rule placing burden of proof on holder of negotiable instrument to show that he is holder in due course obtains where there is fraud in inception of note. Voris v. Birdsall, 62 Okl. 286, 162 P. 951.

Where title of any person who has negotiated negotiable instrument was defective, burden is on holder to prove that he or some one under whom he claims acquired title as holder in due course, except as provided in Rev. Laws 1910, § 4109. Lambert v. Smith, 53 Okl. 606, 157 P. 909.

When title of any one negotiating an instrument is defective, the burden is on the holder to prove that he or some one under whom he claims acquired title as a holder in due course without notice, save under exception provided in Rev. Laws 1910, § 4109, and otherwise he cannot recover against maker. Daniels v. Bunch (Okl.) 172 P. 1086.

Where the defense to a note is that it was obtained by the payee's fraud, which is established, the burden is on plaintiff to show that he purchased it without notice of the fraud. Mangold & Glandt Bank v. Utterback (Okl.) 174 P. 542.

Where the maker of a note shows that the note has been negotiated in violation of agreement, the burden is on the holder to prove acquisition of title as a holder in due course, without notice of any infirmity. Gourley v. Pio neer Loan Co., 51 Okl. 434, 151 P. 1072.

Where a negotiable instrument is shown to have been obtained by false representations, the burden is on the subsequent holder to show himself a bona fide purchaser for value without notice. Cox v. Kirkwood, 59 Okl. 183, 158 P. 930.

Defenses available between the acceptor and drawer of a bill of exchange

If a draft is not indorsed to a person asserting ownership different from that shown on its face, such person has the burden of proving such ownership.55

Where a note remains with the original payee, he is presumed. to know the relation the parties to the note sustain to each other, and, where he denies such knowledge, the burden is on him to overcome such presumption by proof to the contrary.5

56

A payee's possession of a note is prima facie evidence of ownership, though the note shows an indorsement by him uncanceled.57 In other words, one in possession of a note payable to his order is presumed to be the owner and holder of same for value."

§ 957. Consideration

58

"The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it." 59

are not available in an action by the payee against the acceptor if the payee is a bona fide holder for value, and the burden of overcoming the presumption that the payee is not a bona fide holder for value is on the acceptor, who seeks to set up such defenses against the payee. Morrison v. Farmers' & Merchants' Bank, 60 P. 273, 9 Okl. 697.

In an action on a note which a bank had discounted, depositing the proceeds to the seller's credit, the burden was on defendant to show that such proceeds had not been paid out. National Bank of Commerce v. Armbruster, 142 P. 393, 42 Okl. 656.

55 First Nat. Bank of Poteau v. Moniot, 50 Okl. 85, 150 P. 1040.

56 Stovall v. Adair, 60 P. 282, 9 Okl. 620.

57 Waldock v. Winkler, 51 Okl. 485, 152 P. 99.

58 Ringer v. Wilson, 55 Okl. 41, 154 P. 1145.

59 Rev. Laws 1910, § 935.

Where want of consideration is pleaded, but execution of the written contract admitted, the burden is on defendant to prove want of consideration. Ball v. White, 50 Okl. 429, 150 P. 901.

In action on note, burden of proving affirmative defense that consideration therefor is illegal is upon the defendant. Chandler v. Lack (Okl.) 170 P. 516; Tinker v. Midland Valley Mercantile Co., 105 P. 333, 25 Okl. 160.

Where the execution of a written instrument was admitted because of want of verification of the reply, but want of consideration was set up, the party pleading want of consideration has the burden of proof, under Rev. Laws 1910, §§ 934, 935. St. Louis & S. F. R. Co. v. Bruner, 52 Okl. 349, 152 P. 1103; . Reeves & Co. v. Dyer, 52 Okl. 750, 153 P. 850.

Under express provision of Rev. Laws 1910, § 934, a bond, being a "written instrument," is presumptively supported by a consideration. Liverpool & London & Globe Ins. Co. v. Biggers (Okl.) 175 P. 242.

Where the execution of a release of damages for personal injuries is admitted, the burden of proving fraud and want of consideration is upon the

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