The instruction relating to the burden of proof, in view of the issues arising from the allegations of the respective parties and the stipulations, was not incorrect. In the instructions, of which that quoted in the original opinion is a part, the jury was told that respondent had the burden of proving the alleged modification of the original contract, and it followed that, if he succeeded in such proof, he was entitled to recover the amount charged against him for the drive. On the other hand, the court instructed the jury that the burden was on appellant to prove the allegations of his counterclaim, i. e., that approximately $17,000, which it was stipulated appellant had paid out, was properly charged against respondent. In this connection it *Page 715 is important to note that even under the original contract, which appellant contended had not been modified, respondent was not required to bear all the expense of the drive. It was therefore peculiarly appropriate for the court to instruct the jury that the burden was on appellant to prove that ". . . . the payments alleged to be made by it . . . . are chargeable against . . . ." respondent. The last sentence of the quoted instruction referred to the "payments" alleged in the counterclaim, by reason of which appellant demanded judgment. The instruction did not place on appellant the burden of proving that the cost of driving the logs, which, under the original contract, respondent was required to bear, "was chargeable to" respondent. It is our view that the issues, facts and circumstances in this case are such as to be plainly distinguishable from Idaho Placer Min. Co., Ltd., v. Green,14 Idaho 294, 94 P. 161, and the law there announced is not applicable in this case.
We adhere to the original opinion.
William A. Lee, C.J., and Budge and Givens, JJ., concur. Taylor, J., disqualified.
Petition for rehearing denied.