Inasmuch as the whole theory of the case and the instructions as a whole depend upon and are governed by the court's instruction No. 1, the giving of which instruction is assigned as error by plaintiff, and inasmuch as a determination of this assignment decides the case, it is useless to determine the less material assignments. The instruction complained of reads as follows: "The burden is upon the plaintiff to establish the facts entitling it to recover herein by a preponderance of the evidence." As a general proposition of law this instruction is correct, but applied to the issues and facts herein it is not. The burden is always upon the plaintiff to prove the facts which entitle him to recover, but a proper application of this rule under the issues raised in the case at bar requires the aid of another equally well-settled rule — that one who interposes an affirmative defense must prove it. The burden of the whole case is upon the plaintiff, but, when a prima facie case is made and defendant seeks to meet same with an affirmative defense, the burden is not on the plaintiff to produce a preponderance of the evidence on that issue.
This suit was brought to recover on a plain promissory note in the ordinary form. The note is regular and valid on its face. The petition alleged its execution and delivery by the defendants for a valuable consideration, and the defendants admitted the execution of same, but alleged fraud in procuring the signatures thereto — Cannon alleging an alteration of the instrument since he had signed it, and further alleging that he had been released from liability by the agent of plaintiff; Whelchel that his signature to the note had been procured upon the representation that *Page 338 Cannon was a surety thereon when in fact Cannon had been released from liability on same, and alleging that as a further inducement plaintiff promised to obtain a mortgage on Clingan's cattle, which promise was not fulfilled. Upon this condition of the issues the instruction complained of had the effect of placing the burden upon the plaintiff to overcome by a preponderance of the evidence the issues of fraud and alterations in the instrument.
This is clearly against the well-settled rule of law that one who pleads fraud as a defense to a written contract must assume the burden of proof of the fraud alleged. Barteldes Seed Co. v.Border Queen Mill Elevator Co., 23 Okla. 675, 101 P. 1130;Banks v. State, 2 Okla. Cr. 339, 101 P. 610; Case ThreshingMachine Co. v. Peterson, 51 Kan. 713, 33 P. 470; Bank ofLittle Rock v. Frank, 63 Ark. 16, 37 S.W. 400, 58 Am. St. Rep. 65; Truett v. Onderdonk, 120 Cal. 581, 53 P. 26; Montgomeryv. Crossthwait, 90 Ala. 553, 8 So. 498, 12 L. R. A. 140, 24 Am. St. Rep. 832.
The force and effect of the foregoing instruction was not modified by the court's charge as a whole, nor by any separate paragraph of same. The plaintiff offered the following instruction, which in our opinion substantially states the law applicable:
"You are instructed that the law of this case is as follows: That the burden of proving fraud in the procuring the execution of the note, if any, or the release of the defendants as sureties upon said note, is upon the defendants, and they must establish this fact by a preponderance of the testimony before they could be released as sureties thereon for such reasons."
This instruction was refused by the court. The giving of instruction No. 1 by the court, and the refusal of the court to give the above instruction, had the effect of placing upon the plaintiff a burden not imposed by law. As to whether there was merit in the defense made by Cannon and Whelchel is not for us to say. But when they interposed such defense they assumed the burden of maintaining same.
For these reasons, the judgment should be reversed, and the cause remanded.
By the Court: It is so ordered. *Page 339