— It is settled in. this state that if one person hires to another for a definite period and abandons such service before the expiration of his term, without cause proceeding from his employer, or the act of God, he can not recover for the services he has rendered. Earp v. Tyler, 73 Mo. 617, and cases there cited. The *634issue in the case at bar was: What was the contract, was it a hiring at eighteen dollars per month and no definite time fixed, as alleged by plaintiff, or was it otherwise, a contract different from that alleged — a contract of hiring for a definite period ? Here was a defined issue as to the terms of employment. Plaintiff based his right to recover on a contract by him claimed for an indefinite time. Defendant denied it. The burden of proving this proposition was with the plaintiff. “The obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue.” 1 Greenl. Ev., sec. 74. The affirmative of this issue was with the plaintiff, and it was error therefore to instruct the jury on this issue, that the onus was on the defendant to disprove the contract sued on by plaintiff; that defendant was bound by a preponderance of the evidence to prove that something else was the contract, as was, in effect, the instruction number 2 quoted in the foregoing statement of the case.
Had defendant set up by way of counter-claim an agreement to serve for a definite period, and asked affirmative relief, as was the case in Church v. Fagan, 48 Mo. 125, then to warrant such relief the burden might well be claimed to rest on the defendant as to that issue. But here the matter is different. Plaintiff sues on a certain contract, and he must establish the facts by him alleged before the aid of the law can be invoked. Sharswood on Ev.
Suppose the status of the parties was reversed, and Lipscomb was suing Leveridge for damages for abandoning his contract of service for a definite time, and Leveridge should deny the contract as set up by Lipscomb, would not the burden of that issue rest on Lipscomb ? It would therefore be error to tell the jury, unless Leveridge proved by a preponderance of the evidence that the contract of hiring was for an indefinite period, the verdict should be for Lipscomb. Boogher *635v. Ins. Co., 8 Mo. App. 534. Tlie error herein referred to is in this case particularly harmful.
It appears there were but the two witnesses as to the terms of the contract, plaintiff claiming that one thing and defendant another and different thing. It may be the jury found the evidence equipoised, evenly balanced, and by the instructions of the court the jury might reasonably have concluded that under such circumstances it was their duty to find for the plaintiff, whereas the reverse is true as a matter of law.
The judgment must be reversed, and the cause remanded.
The other judges concur.