ON MOTION EOR REHEARING.
The defendant in error has moved for a rehearing upon the alleged ground that this court in holding that in this ease, which is not a suit upon the retention-of-title contract but is a suit in trover wherein the retention-of-title contract is evidentiary only as tending to establish the essential elements pf the case, that the burden of proof was upon the plaintiff to establish the essential elements 'of its case by a preponderance of the evidence, has overlooked certain decisions with reference to placing the burden, or as to the burden of proof. These cases have reference only to the burden of proof which rests upon a defendant who has, in a plea in the nature of a confession and avoidance, set up an affirmative defense, and also to the burden which rests upon a party of going on with the evidence and producing evidence in rebuttal of evidence adduced by the opposite party. In the former situation the burden of proof is upon the defendant to establish his affirmative defense by a preponderance of the evidence. In the latter situation the defendant or party carrying the burden has the burden only of adducing evidence in rebuttal or in contradiction of that of the opposite party which when standing alone constitutes prima facie proof, which burden is not to be carried by a preponderance of the evidence. Hyer v. Holmes, 12 Ga. App. 837 (79 S. E. 58); Standard Paint & Lead Works v. Powell, 27 Ga. App. 691 (2) (109 S. E. 513); Masonic Relief Asso. v. Hicks, 47 Ga. App. 499, 500 (171 S. E. 215), and cit.
The defendant in this case filed no written plea, but simply entered an appearance as required by the rules of the municipal court in cases of the character of this case. This amounted to a plea of general denial.. It certainly was not a plea in the nature of one in confession and avoidance. Her plea therefore being one merely generally denying the allegations of the plaintiff, any burden which may have rested upon her, if any, was the burden only of going on with the evidence. This burden she was not required to carry by a preponderance of the evidence. The burden of proof which rested upon the plaintiff in the beginning to establish the essential allegations of the petition by a preponderance of the evidence was not *897removed by the defendant’s plea which was a mere denial of the allegations of the plaintiff’s petition. At the close of the testimony the burden of proof which rested upon the plaintiff to establish the allegations of the petition bjr a preponderance of the evidence still rested upon the plaintiff. This court therefore is satisfied that its ruling to this effect was correct. In Hopkins v. King, 32 Ga. App. 698 (124 S. E. 367), in which the opinion was prepared by the writer, where it was held that “there was no error in casting the burden of proof upon the defendant, who in her plea had admitted the execution of the note and set up the defense of suretyship for the debt of her husband,” the defendant had set up a substantive defense in the nature of a plea in confession and avoidance, and necessarily carried the burden of proof which required her to establish this defense by a preponderance of the evidence. That case is clearly distinguishable from the case now before the court.
It is also insisted that this court has overlooked testimony in the record which the movant claims establishes as a fact that when the defendant, wife, executed the contract of April 5, 1932, which the plaintiff relies upon as establishing his title, the articles included therein and which had been included in the retention-of-title contract which the husband had executed March 27, 1931, had been paid for. If this court has overlooked any such evidence no harm was done the defendant in error. If any of the goods included in the wife’s contract and which had originally been sold to the husband under the retention-of-title contract made with him had been paid for, the title thereto certainly was not in the plaintiff, and it is conclusive that such property has not been converted. The conclusion which this court has arrived at in the decision rendered that the evidence is insufficient to establish title to the property in the plaintiff is correct. In Wolff v. Hawes, 105 Ga. 153 (31 S. E. 425), where goods had been sold as a result of dealings with a husband and wife, and the seller was in doubt as to which one had contracted therefor and was liable, and when the husband was in failing circumstances the wife told the seller that he need not be uneasy about the account that it was hers and she would pay it, that she bought the goods herself, and the seller acting upon these representations took no steps to seize the goods or to enforce his claim against the husband, the wife was afterwards, in a suit against her to recover the purchase price of the goods, estopped from denying *898that the contract was hers. No such situation is presented in the ease now before the court. The plaintiff neither sold the goods not refrained from efforts to collect out of the husband upon the strength of any representations made by the wife. The plaintiff clearly and unequivocally, as was not the case in Wolff v. Hawes, supra, originally contracted with the husband, and afterwards took a contract from the wife to pay for the same property. The only evidence which could possibly indicate any conduct on the part of the wife which would estop her from denying that the debt was hers, and from asserting that it was a debt of her husband, is the promise by her, made sometime after the goods had been sold and delivered under the contract which was undoubtedly a contract with the husband, that she would execute in her own name a contract to pay for the goods which had been sold to the husband. Nothing she said could have justified the seller to refrain from enforcing the seller’s contract against the husband, and she is not estopped from defending the suit on the ground that the contract which she executed was in payment of a debt of her husband.
The motion for rehearing is overruled.