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 con*74fessed. 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.